(1) The only question involved in this appeal under Clause 10 of the Letters patent is whether a second appeal against an order made in execution proceedings of a decree for ejectment passed under the Delhi and Ajmer-Merwara Rent Control Act, XIX of 1947, is competent.
(2) The facts relevant for the purposes of this appeal are these: The appellant-landlord had filed a suit for ejectment of his tenant, the respondent, on 24-8-1945, on the ground of the tenant having sublet a part of the premises without obtaining his consent. A decree for ejectment, on the basis of a compromise, was passed in favour of the landlord on 29-11-1945. According to the compromise the tenant was to vacate the premises after the expiry of six months. The tenant having failed to vacate the premises, the landlord-decree-holder took out execution of the decree. During the pendency of the execution proceedings, the Delhi and Ajmer Merwara Rent Control Act, XIX of 1947 (hereinafter to be referred as the Act) came into force.
The judgment-debtor raised certain objections to the execution, particularly on the ground that the decree had become inexcusable as provided in the Act. The objection was over-ruled on 18-11-1947, and an appeal against that order was also dismissed. The decree-holder succeeded in getting possession of a part of the premises. Another application for execution was then filed by the decree-holder. Some objections having again been taken by the judgment-debtor, the execution application was dismissed. A third and the present application for execution was preferred by the decree-holder on 3-12-1952, praying for delivery of possession of the remaining portion of the premises.
The judgment-debtor raised the same objection over again, viz., that the decree contravened that provisions of the Act and was, therefore, inexcusable. The executing Court repelled the objection in view of the order dated 18-11-1947, already made in the first execution application. However, in appeal, the objection was accepted and the order of the executing Court was set aside. It was against this order that a second appeal was filed in this Court and a preliminary objection was taken that the appeal was not competent. The learned single Judge, Gurnam Singh J., accepted the preliminary objection and dismissed the appeal as incompetent. It was further observed that even if the appeal were treated as revision, there appeared to be no ground for interference, but with this part of the order we are not at present concerned.
(3) It is common ground between the parties that the decree for ejectment was made when the Delhi Rent Control Ordinance, No. 25 of 1944, was in force and that the relevant provisions of the Ordinance were similar to those of the Act, which came into force on 24-3-1947. It is also agreed that the rules framed under the Ordinance were identical with those framed under the Act. Section 14 of the Act provides for rules to be framed by High Court inter alia with a view to determine the classes of Courts which shall have power to hear and decide original cases, appeals and applications for revision and to deal with execution proceedings under the Act and the procedure to be followed by them.
The power to frame rules includes the power to determine in what circumstances the parties shall have a right to appeal or apply for review or revision in cases under the Act. Rule 4 of the Delhi Rent Control (Procedure) Rules, 1947, framed in exercise of the power conferred by S. 14 of the Act, specifies the cases where a party to an original case shall have a right of appeal and the Courts competent to hear the appeal. Rule 5 lays down that there shall be no right of second appeal. It is thus clear that under the rules no second appeal against an order made in 'an original case' under the Act is competent.
(4) The contention raised on behalf of the appellant is that an order made by the executing Court under S. 47, Code of Civil Procedure determining question that arises between the parties to the suit and relates to the execution, discharge or satisfaction of the decree amounts to a decree and as such the order is appealable by virtue of S. 96 of the Code and a second appeal against the order would also be competent if the case satisfies the conditions laid down by S. 100. Rules 4 and 5 framed under the Act, it is submitted, relate to orders made in original cases and are not applicable to an execution proceeding.
(5) Now, the principle of law is well established that no appeal shall lie against an order made in execution of a decree, where the decree itself is not appealable. Similarly, a second appeal will not be competent from an order passed in proceedings in execution of a decree where no second appeal would have lain in the suit itself in which the decree was passed. Section 9 of the Specific Relief Act lays down that no appeal shall lie from an order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
The question has several times arisen as to whether an order made in execution of a decree passed under S. 9 of the Specific Relief Act is appealable or is open to review. In Kanai Lal Ghose v. Jatindra Nath Chandra, ILR 14 Cal 510. It was held that an application in execution proceedings is included in the term 'suit' in S. 9 of the Specific Relief Act and, therefore, an appeal to the District Judge from an order of the executing Court was incompetent. The same view was taken by Shadi Lal J. (as he then was) in Jahangir Singh v. Hira Singh, 39 Ind Cas 375: (AIR 1917 Lah 21).
(6) Another instance of cases falling under S. 102 Code of Civil Procedure may also be cited with advantage. The section provides that no second appeal shall lie 'in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed five hundred rupees'. It has been repeatedly held that in such a case second appeal will not lie from an order passed in proceedings in execution of the decree, because no second appeal would have been competent in the suit itself in which the decree was passed, (vide Sant Prasad v. Bhawani Prasad, ILR 43 All 403: (AIR 1921 All 55 (2)); Bhagela Shah v. Sita Ram, AIR 1928 Lah 444; Gorachand Missir v. Raja Baykanto narain Singh, 12 Bang LR 261; Din Dayal v. Patra Khan, ILR 18 All 481; Narayan v. Nagindas, ILR 30 Bom 113 and Mavula Ammal v. Mavula Maracoir, ILR 30 Mad 212).
(7) Proceedings in execution are not separate, independent proceedings, but they are proceedings in or arising out of a suit. Where the Legislature with the object of preventing protracted litigation provides that no second appeal lies in a suit or an original case', there seems to be no reason why nevertheless the Legislature should be taken to have intended to allow a second appeal against an order made in a proceeding for the enforcement of the decree or order passed in that suit or 'original case'. In my view, the words 'an original case' in Rule 4 of the Rules under the Act should be deemed to include a proceeding in execution of the decree or order made in the 'original case'.
There would thus be no right of second appeal in such a case, as provided by Rule 5. Sections 96 and 100 of the Code of Civil procedure, which provide for appeal and second appeal from an original decree, start by saying,' Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force'. It follows that the right of appeal or second appeal can be taken away by a special or local enactment and where that is done S. 96 or S. 100 will have no application.
(8) Reliance on behalf of the appellant in placed on a Division Bench decision of this Court in Messrs Hans Raj Salig Ram v. Naranjan La, 1952-54 Pun LR 31: (AIR 1952 Punj 159). That was, however, a case under the Punjab Urban Rent Restriction Act (VI of 1947), the relevant provisions of which are widely different. The said Act constitutes special Tribunals for determination of questions arising under that Act and takes away the jurisdiction of ordinary Courts to deal with them. Under S. 13--the section dealing with eviction of tenants--it is the Controller who has to decide the matter. Section 15 provides for an appeal to such appellate authority as the Provincial Government may specify. By clause (4) of s. 15 the decision of the appellate authority is made final. Section 17 relates to execution of orders passed under that Act and says:
"Every order made under S. 10 or S. 13, and every order passed on appeal under S. 15 shall be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court"
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The scheme of that Act thus is that further proceedings by way of execution of the order shall go to the ordinary Civil Courts. That being so, all the incidents of the ordinary procedure of Civil Courts shall attach to the disposal of matters arising out of the execution proceedings and those incidents of ordinary procedure would, if necessary, include rights of appeal. It was in view of these peculiar provisions of the statute that the learned Judges held that an order deciding a question between the parties to the original proceedings or their representatives and relating to the execution, discharge or satisfaction of the order made under S. 10, S. 13 or S. 15 of the said Act is appealable under S. 96 of the Code of Civil Procedure, and from an order passed in appeal under S. 96 of the Code a second appeal lies under S. 100 of the Code on grounds mentioned in clauses (a), (b) or (c) of the said section.
The decision is clearly distinguishable and can have no application to a case covered by the provisions of the Act under consideration. In Padam Parshad v. Din Chand, 1957-59 Pun LR 24, a case under the East Punjab Urban Rent Restriction Act, 1949, (the relevant provisions of which are similar to those of Act VI of 1947) my learned brother Falshaw J. followed the above decision and expressed the view that the effect of S. 17 of the East Punjab Urban Rent Restriction Act is that execution of orders passed under sections 10, 13 and 15 of that act are to be treated as ordinary execution proceedings as if they were ordinary decrees of civil Courts, and that both the ordinary procedure and the ordinary rules as to appeals would apply. For the reasons already stated the decision has no bearing to the facts of this case.
(9) I would accordingly dismiss the appeal and leave the parties to bear their own costs.
(10) Falshaw, J.
I agree.
(11) Appeal dismissed.