R.N. Misra, J.@mdashNarendra Mohan Panda, predecessor-in-interest of Respondents 1 to 7, obtained an order of eviction of the tenant Sisir Kumar Sen (Respondent No. 11) in House Rent Control Case No. 26 of 1978. The decree-holders levied Execution Case No. 5 of 1972 for obtaining delivery of possession of the house. There was resistance by the Appellants and Respondents 8 to 10. An application was, therefore, made by the decree-holders under Order 21, Rule 97 of the Code of Civil Procedure. The decree-holders alleged that when attempt to deliver possession was made in execution of the decree, at the instigation of the judgment-debtor the Appellants and Respondents 8 to 10 threatened the process server as also the decree-holders. Appellants 1 and 2 in the counter maintained that they had not been inducted into the house by Sisir Kumar Sen, but by late Anand Prakas Dey. They claimed that the house belonged to the family consisting of Goshtagopal Dey, Brajagopal Dey and Nityagopal Dey and their tenancy was from Ananda who was son of Brajagopal. They produced an agreement dated 31-7-1970 (Ext. H) in support of their claim of tenancy. They further pleaded that in Title Suit No. 32 of 1968 which was one for partition of properties belonging to the three brothers on the landlords'' side, Brajagopal had been appointed as receiver in respect of some of the houses including the disputed house and under orders of the Court, Prafulla had been realising rent from the tenants. According to them, the house sent control case was not properly constituted in the absence of the co-sharers and the tenants under the co-sharers were not affected by the compromise decree. The decree-holders had filed an independent proceeding under the House Rent Control Act being H.R.C. Case No. 9 of 1971 for evicting them and when they claimed tenancy under Ananda, the decree-holders had withdrawn the application and had put the earlier order of eviction to execution. They admitted resistance claiming an interest in them.
Prafulla, Appellant No. 3, in a separate counter maintained that the house in question belonged to their family and he is a receiver appointed by this Court in the first appeal arising out of the suit for partition. Since Niranjan Appellant No. 1 is a tenant under him, in execution of the decree obtained by the predecessor-in-interest of Respondents 1 to 7, the tenant in lawful possession cannot be evicted.
2. Appellants examined 3 witnesses and proved a number of documents while Respondents examined 5 witnesses and also relied upon a number of documents. The Executing Court on the basis of the material placed before It came to hold:
...Under such circumstances it would be expedient in the interest of justice to direct that although on the aforesaid evidence and document the O.Ps. are not competent to resist delivery of possession and they are to vacate from the suit house, the Petitioners cannot take delivery of possession before they obtain permission from the Hon''ble High Court of Orissa to evict the present O.P. Niranjanlal Gupta and his brothers who are admittedly in occupation of the decretal house. At the same time it is open to the O.P. Niranjanlal Gupta and P.K. Dey to come up in regular suit under Order 21, Rule 63, CPC to establish their right of possession.
Appellants preferred an appeal to the learned Subordinate Judge challenging the order of the Executing Court. The learned Subordinate Judge came to hold that the Appellants had preferred claim under Order 21, Rule 58 of the CPC and their claim had been rejected. They however, did not file any suit under Rule 63 of Order 21. Therefore, their right, if any, had been extinguished and an order under Rule 58 had become conclusive. He sustained the order of the Executing Court.
3. The present Appellants filed this appeal as also Civil Revision No. 27 of 1979 against the appellate decision. By order dated 7-11-1979, the Civil Revision was held to be incompetent and this appeal was admitted for hearing.
4. Admittedly, Niranjan had filed a claim petition under Order 21, Rule 58 of the Code in this very execution case at an earlier state when the same had been registered as M.J.C. No. 44 of 1972. That claim was dismissed on 18.4.1973. Prafulla also had filed an independent claim case in M.J.C. No. 14 of 1973 and that had been dismissed on 30th of January, 1974. Niranjan''s case was dismissed after investigation while Prafulla''s was dismissed for default. Reliance has been placed on a decision of the Patna High Court in
Mr Sinha for the Appellants to avoid this difficulty has contended relying on a Bench decision of this Court in the case of Krishna Ballav Ghosh v. Sashimukhi Bose 14 (1948) C.L.T. 70, that in every case there does not seem to be any necessity for resorting to relief under Rule 63. The facts of that case were different. The Court observed in course of the judgment thus:
...If it is the contention of Mr. Mukherji, the learned Counsel for the Appellant, that the first order In the claim case was conclusive, it was for him to plead that as a defence in the subsequently filed suit. If established, it should have been a complete bar to the maintainability at that suit. It may also be assumed that some such plea might have as wen been raised. If in that case that plea has been negatived, it is not open to Mr. Mukherji to take a stand again upon the conclusive character of the order in the claim case. That the order in the claim case is conclusive is a question of fact as well as of law. Mr. Mukherji had to concede that there may arise circumstances in which the unsuccessful claimant might not have to institute a suit as contemplated under Order 21 Rule 63, Code of Civil Procedure. Had that been raised in the suit, it would be open to Bhagabat Gosain to plead those circumstances. In that event the decision in that title suit by which the present Appellant is bound shall be taken to have been arrived at after consideration of those circumstances and shall be conclusive. It has to be considered that the conclusiveness of the order in the claim case has open pleaded but negatived. It is wrong, therefore, to contend independently of the decree of that suit, that the order in the claim case is conclusive as to title of Bhagabat Gosain.
Nothing has been said in the Bench decision of this Court which would assist Mr. Sinha. Reliance was placed on a Full Bench decision of the Chief Court of Oudh in the case of
The observations of the Division Bench in the case of Mukhram Pandey and Anr. v. Arjun Missir and Ors. AIR 1934 Pat 311, were also on a set of facts which are very different from the present ones and no reliance can be placed on the ratio of the decision for the present purpose.
In the case of
5. Mr. Sinha next contended that Article 11 of the Limitation Act of 1908 had been deleted and, therefore, merely because a suit had not been filed after the adverse order had been made in the claim under Rule 58, the bar cannot be applied if the general law of limitation was still available to ask for the remedy. This is a misleading submission in view of the fact that what was provided in Article 11 of the old Limitation Act has been very clearly provided in Article 98 of the new Limitation Act of 1963. In fact, the lower appellate Court had clearly dealt with the matter from that angle. This submission, therefore, was not open to be made. The Appellants against whom orders had been made on their claims under Rule 58 of Order 21 of the CPC were, therefore, precluded from raising the present contention. Nothing turned on the feature that at one point of time, the heirs of the decree-holder had filed a separate eviction proceeding against the present Appellants. That was obviously under a mistaken advice and was withdrawn.
6. Mr. Sinha has next contended that a compromise decree in a proceeding under the House Rent Control Act was not a valid one. This submission was possibly on the basis of an earlier Supreme Court decision which has been clarified later by a series of decisions of that Court.
7. There is no merit in the appeal and the same is accordingly dismissed with costs.
