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Smt. Bijayalaxmi Sahoo v. Smt. Sanjukta Prusty And Anr.
Summary of Opinion — Civil Revision by Judgment-Debtor (tenant)
Factual and Procedural Background
The petitioner is the judgment-debtor and a monthly tenant of a house belonging to the late Gopal Sahu. She filed Title Suit No. 68 of 1986 in the 1st Court of Subordinate Judge, Cuttack, seeking declaration that she was a monthly tenant not evictable without due process and an injunction restraining the defendants from removing the house roof. She obtained an interim order in Misc. Case No. 79 of 1986 (dated 2-8-1986) restraining eviction by force and directing the petitioner to effect repairs to the roof at her cost without altering the nature of the house.
The repair order was challenged by certain defendants; the appeal was disposed of on 23-4-1987 as spent. The petitioner later applied to deposit monthly rent in Court; by order dated 14-10-1988 the trial Court directed payment of monthly rent to defendant No. 5 (or her power of attorney, defendant No. 2). That order was confirmed by this Court in two Civil Revisions by common order dated 13-2-1989, with direction to dispose of the suit by end of July 1989.
Opposite parties filed Money Suit No. 73 of 1989 for recovery of arrears of rent (Jan 1986 to 31-1-1989); the plaint was rejected on the technical ground that the relief was covered by the existing order in Title Suit No. 68 of 1986. Title Suit No. 68 of 1986 was later dismissed for default when the plaintiff failed to appear for hearings.
Thereafter the opposite parties instituted Execution Case No. 64 of 1989 to execute the order dated 14-10-1988 directing payment of monthly rent. The petitioner challenged executability under Section 47, CPC in the executing Court; that challenge was dismissed. The petitioner then filed the present Civil Revision against the executing Court's decision.
Legal Issues Presented
- Whether an order of a civil court directing payment of money (order dated 14-10-1988) is executable under Section 36 of the Code of Civil Procedure (CPC) as substituted/amended in 1976.
- Whether rejection of a separate money suit for arrear rent extinguishes or prevents execution of the earlier order that directed payment of the rent.
- Whether an executing court can consider or allow adjustment of amounts expended by a tenant for repairs where the tenant carried out repairs pursuant to a civil court order, in the face of the Orissa House Rent Control Act, 1967 (in particular Section 10).
- Whether the executing court was correct in rejecting the petitioner's challenge under Section 47, CPC and in refusing to allow adjustment of repair expenses claimed by the petitioner.
Arguments of the Parties
Petitioner's Arguments
- The petitioner challenged executability of the order in execution proceedings under Section 47, CPC (i.e., she contended the order should not be executed or that separate suit was necessary for recovery).
- Implicitly, the petitioner contended that recovery of the amount could not be effected by execution without a suit, and that she had authority to effect repairs and therefore was entitled to adjustment of repair expenses against rent (she relied on the civil court permission to effect repairs on 2-8-1986).
Opposite Parties' / Decree-holders' Arguments
- Opposite parties maintained that the order dated 14-10-1988 was an order for payment of money capable of execution under Section 36, CPC and that they were entitled to execute that order for recovery of rent arrears.
- They relied on the trial Court and the revisional order confirming the payment direction; thus, a separate money suit was unnecessary and the plaint in Money Suit No. 73 of 1989 was rightly rejected because execution of the existing order was available.
- Opposite parties (and the executing Court) disputed the petitioner's claim for adjustment of repair expenses and found that the petitioner exceeded her authority to repair, and therefore was not entitled to adjustment.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 1973 (I) C.W.R. 715 (Md. Usman Khan v. Hari Sahu and Anr.) | Illustrative authority indicating that when the Orissa House Rent Control Act, 1967 was in force it governed landlord-tenant repair obligations (i.e., landlord's obligation to keep the house habitable under the statutory regime). | The court relied on this authority (as cited in the opinion) to support the proposition that the Orissa House Rent Control Act displaced the ordinary Transfer of Property Act rule and vested repair-related jurisdiction in the House Rent Controller. |
| 58 (1984) CLT 343 (Maguni Chandra Owibedi v. Sardar Gurbachan Singh Dugal) | Authority supporting the view that the House Rent Control legislation governed repair obligations and related remedies, limiting the tenant's right to repair at landlord's cost. | The court used this citation to reinforce its conclusion that the Orissa House Rent Control Act governed repair and adjustment questions and that civil courts lacked jurisdiction to permit adjustment of repair expenses contrary to Section 10 of the Act. |
Court's Reasoning and Analysis
The court proceeded in distinct analytical steps:
- Applicability of Section 36, CPC: The court observed that Section 36, as substituted in 1976, applies "so far as they are applicable" to execution of orders, including payment under an order. The order dated 14-10-1988 was an order for payment of money and therefore falls within the plain language of Section 36, CPC; there was no valid objection to its executability on that ground.
- Source and nature of the order: The order sought to be executed originated from an application filed by the petitioner herself (seeking to deposit rent). The trial Court's direction to pay rent was confirmed on civil revision. Because the petitioner had sought the relief that resulted in the payment direction and failed to overturn it, she could not successfully avoid execution in subsequent proceedings.
- Effect of rejection of the separate money suit: The court held that rejection of the plaint in Money Suit No. 73 of 1989 (on the technical ground that the matter was covered by the existing order) did not nullify or "eclipse" the executability of the earlier order; indeed, the rejection explicitly included the finding that the order was executable.
- Limitation: The court noted that once an order is executable it can be executed within twelve years as provided by Article 136 of the Limitation Act, 1963 (as cited in the opinion).
- On the petitioner's argument that without a suit amount could not be recovered: The court reasoned that had the petitioner been permitted to deposit rent in Court (as she had sought), the trial Court would have been the custodian of that deposit and could have directed its disbursement on disposal of the suit. Therefore, the petitioner could not now object that execution, rather than a fresh suit, was the proper mode of recovery, particularly since she herself had procured the order and failed to comply with it—ending in dismissal of her suit for default.
- Adjustment of repair expenses and jurisdictional issue: The court contrasted the ordinary Transfer of Property Act rule (tenant's duty to keep accommodation in repair) with the statutory regime under the Orissa House Rent Control Act, 1967. The court explained that Section 10 of the Orissa Act specifically empowers the House Rent Controller to direct repairs or to authorise the tenant to effect repairs and to adjust reasonable expenses against rent in instalments, subject to limits. Because Section 10 provides a specific statutory procedure (including enquiry by the Controller), the Civil Court had no jurisdiction to order adjustment of repair expenses or to assume the Controller's functions. The trial Court's order permitting the tenant to repair did not, in the court's view, confer on the petitioner a right to adjust excess expenditures against rent. The executing Court therefore rightly refused to credit the petitioner's evidence and accounts, finding she exceeded her authority to repair; on that basis petitioner was not entitled to adjustment.
- Conclusion on merits: Having found the order executable, the petitioner's objections to execution (including reliance on the separate money suit or claims for adjustment) lacked merit. The executing Court's dismissal of the Section 47 challenge was upheld.
Holding and Implications
Core Ruling: This Civil Revision is dismissed with costs. Hearing fee is assessed at Rs. 250/-. The court held that the order dated 14-10-1988 (directing payment of monthly rent to defendant No. 5 or her power of attorney) is executable under Section 36, CPC and may be executed within the limitation period provided by Article 136 of the Limitation Act, 1963.
Implications and direct effects:
- The petitioner (judgment-debtor) remains liable to pay the monthly rent from January 1986 until dismissal of the suit, and the decree-holders (opposite parties) are entitled to execute the 14-10-1988 order to recover arrears.
- Rejection of the separate money suit by the trial Court does not prevent execution of the earlier payment order; the executing remedy remains available and the plaint rejection itself contained the finding that the order was executable.
- On the question of repairs and adjustment: under the Orissa House Rent Control Act, 1967 (Section 10) jurisdiction to direct repairs or to authorise adjustment of repair expenses vests with the House Rent Controller. Civil Courts lack jurisdiction to order adjustment of repair expenses that fall within the statutory scheme; accordingly, the petitioner is not entitled to adjustment of amounts she spent on repairs when she exceeded her authority.
- No new legal precedent was stated to be created by this decision beyond the application of the statutory provisions and the cited authorities; the decision enforces existing statutory principles and upholds executability of court orders for payment of money.
All statements and summaries above are limited to and derived from the content of the provided opinion.
1. Judgment-debtor is the petitioner in this Civil Revision.
2. Judgment-debtor is a tenant of a house belonging to deceased Gopal Sahu. She filed Title Suit No. 68 of 1986 in the 1st Court of Subordinate Judge, Cuttack against opposite parties as defendant Nos. 2 and 5 and 3 others who are all children of Gopal for declaration that she is a monthly tenant in respect of the house and is not evictable without due process of law. Her further prayer, was to restrain defendants from removing the roof of the house.
3. Judgment-debtor filed an application for temporary injunction registered as Misc. Case No 79 of 1986 which was disposed of by the trial Court by order dated 2-8-1986. Relevant portion of the order is extracted below :
"The opposite parties are restrained from evicting the petitioner by force. The petitioner is liable to be evicted by order of any competent Court. The petitioner is also directed to effect repair of the roof of the house which is in her occupation at her cost without making any new construction or alteration or remodeling. The repair should be made in such manner that the nature of the suit house should not be changed or altered."
4. The said order was challenged by defendant Nos. 2, 4 and 5 in appeal. By-order dated 23-4-1987, appeal was disposed of as the same had spent its force, since the repair had already been effected.
5. Plaintiff filed an application In the trial Court to permit her to deposit the monthly rent of the house in Court since there is a dispute relating to entitlement of rent, After hearing parties, trial Court directed by order dated 14-10-1988 to pay the monthly rent to defendant No. 5 (opp. party No. 1 ) or to her power of attorney defendant No. 2 (opp. party No. 2). This order was challenged by .defendant No. 1 as well as by plaintiff (petitioner) in two Civil Revisions. By a common order dated 13-2-1989 both the Civil Revisions were dismissed and order dated 14-10- 1988 was confirmed. It was directed to dispose of the suit by end of July, 1989.
6. In the month of February, 1989, opp. party No. 1 through her power of attorney holder, opp. party No. 2 filed Money Suit No. 73 of 1989 in the Court of 1st Subordinate Judge, Cuttack, for realisation of the arrear monthly rent from January, 1986 till end of 31st January, 1989. Office note was that the suit was barred by limitation. When the matter was listed for consideration of office note, by order dated i3~3-1989, it was found that the suit is not barred by limitation. However, it was held that in Title Suit No. 68 of 1986, order was passed directing the defendant in the suit (petitioner in this civil revision ) to pay monthly house rent and the arrear house rent from 1986 to plaintiff of the suit (opposite parties) which order can be executed by the plaintiff (opposite parties) and no separate suit should have been filed. In that view of the matter, plaint was rejected on technical ground.
7. In view of the order in Civil Revisions, Title Suit was fixed to 21-6-1989 for hearing. Plaintiff remained absent at hearing on repeated calls for which suit was dismissed for default in spite of. defendant Nos. 2, 4 and 5 being ready for hearing.
8. In the aforesaid background, opposite parties filed Execution Case No. 64 of 1989 for executing the order dated 14-10-1988, directing petitioner to pay the monthly rent either to defendant No. 5 or to defendant No. 2 on behalf of defendant No. 5. Executability of the order was challenged by petitioner in an application Under Section 47, C. P. C. Executing Court having dismissed the same, this Civil Revision has been filed.
9. Section 36, CPC as substituted by amendment in 1976 authorises execution of an order for payment of money. It reads as follows :
"36. Apolication to orders The provisions of this Code, relating to the execution of decree (including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to sapply to the execution of orders including payment under an order."
Order dated 14-10-1988 being an order for payment of money to decreeholder, there can be no valid objection to execution of such an order. It comes within the plain language of Section 36, CPC.
10. Order sought to be executed was passed at instance of the petitioner. If she would not have filed an application for deposit of the monthly rent, there was no scope for passing such an order. Order was unsuccessfully assailed in this Court and was confirmed. Thus, liability of plaintiff-judgment-debtor to pay to defendant No. 5 decree-holder No. 1 or the defendant No. 2 decree-holder No. 2 on behalf of defendant No. 5 is a direction of the Court. This order continues till dismissal of the suit. It has of course, no effect after dismissal of the suit. Thus, judgment-debtor had the liability to pay the monthly rent from January, 1986 till dismissal of the, suit to the decree-holders. Having failed to avoid the order in Civil Revision, judgment-debtor has no scope to evade the effect of the order in the execution proceeding.
11. Rejection of plaint for recovery of arrear of rent does not eclipse the order sought to be executed when the clear finding for such rejection is that the order is executable.
12. Once the order is executable, it can be executed within twelve years as provided In Art. 136 of the Limitation Act, 1963 which reads as follows :
13. When judgment-debtor filed the application for deposit of the rent to avoid eviction on account of default in payment of rent and obtained the order, she ought not to be permitted to raise an objection that without filing a suit, the amount cannot be recovered by execution of the order. In case prayer of petitioner would have been allowed, she would have deposited the amount in Court. On such deposit, trial Court would have become the custodian legis of the amount deposited and could have directed payment of the same to opp. parties on disposal of the suit even if the suit would have been decreed. Petitioner could not have raised objection that the amount should not be paid to opp. parties. Accordingly, this plea of the petitioner who has not complied with the order and got the suit dismissed, has no force.
14. Adjustment of the amount spent for repair of the house is the next question to be considered. Normal rule as provided in Transfer of Property Act that it is ordinarily the duty of the tenant to keep the accommodation in good repairs was not in force during the Orissa House Rent Control Act, 1967 was governing the field. [See 1973 (I) C. W. R 715 (Md. Usman Khan v. Hari Sahu and Anr.) and 58 (1984) CLT 343 (Maguni Chandra Owibedi v. Sardar Gurbachan Singh Dugal). Therefore, landlord has the obligation to keep the house in habitable condition. A monthly tenant has no right to repair a house at the cost of the landlord. A monthly tenant can, however, compel a landlord through House Rent Controller to repair the house to keep the house in habitable condition during continuance of the tenancy. Where landlord is negligent which resulted in suffering of a tenant, he may sue for damages for such suffering. To avoid unnecessary litigations and to protect a monthly tenant from inconvenience, provision was made in Section 10 of the Orissa House Rent Control Act, 1967 that House Rent Controller has the power to direct the and lord to effect the repairs- or may permit the tenant to effect the repairs as provided therein. It was made clear that ten-ant is not entitled to adjust any amount spent in excess of the amount reasonably required for such repair, Section 10 reads as follows :
"10. Landlord to effect repairs (1) If the landlord fails to effect normal repairs to the house and thereby renders the house uninhabitable, the tenant may make an application to the Controller, who may, after making such enquiry as he deems fit, direct the landlord to effect such repairs as may be necessary in the opinion of the Controller within a reasonable period to be fixed by him.
(2) In case the landlord fails to comply with the directions issued under Sub-section (1) the Controller may authorise the tenant to effect the repairs at his own cost and to adjust the amount to spend against the rent payable to- the landlord in such number of installments as may be frxed by the Controller :
Provided that the tenant shall not be entitled to adjust any amount spent in excess of the amount which, in the opinion of the Controller, would have been reasonably necessary for effecting the said repairs".
15. When petitioner got permission to effect repair of the house from the Civil Court on 2-8-1986 as an order of injunction, the Orissa House Rent Control Act, 1967 was In force. In view of clear and unambiguous provision in section 10 vesting the power of direction on the House Rent Controller to give direction Civil Court can have no power to give a direction to landlord to repair the house. Specific provision being there authorising enquiry by the House Rent Controller, power of Civil Court In that regard is barred. There is no scope for the Civil Court to pass an order in respect of adjustment of the amount spent by a tenant which is within the jurisdiction of the House Rent Controller, If there would have been an order of the trial Court directing adjustment of the expenses from rent due, I would have no hesitation to vacate the same as without jurisdiction. Trial Court, however, in the ordering portion of the order dated 2-8-1986 held that tenant shall effect the repair at her own cost. While considering the case of modifying the order in Civil Revision it has also been indicated in paragraph 3 of the order dated 22-6-1989 that question of adjustment in the year 1986 would lead to a dispute relating to jurisdiction. Accordingly, executing Court cannot go into the question or adjustment which could not have been passed by the trial Court. Added to it, executing Court rightly did not give credence to the evidence and accounts and has also rightly field that petitioner exceeded in her authority to repair the hous. Thus, I am satisfied that petitioner is not entitled to adjustment.
16. All the questions raised by petitioner having no merit, this Civil Revision is dismissed with costs. Hearing fee is assessed at Rs. 250/-.
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