Matadin v. Board of Revenue U. P — 1965 DIGILAW 439 (ALL)

JUDGMENT W. Broome, J. - This writ petition is directed against an order passed by a first class Assistant Collector (Judicial Officer of Handia, Allahabad) on December 7, 1955, dismissing an objection under Section 47 C.P.C. relating to an execution matter, as well as the subsequent decisions of the Additional Commissioner of Allahabad of the Board of Revenue, dated April 6, 1957, and October 27, 1958 respectively, refusing to interfere with the Assistant Collector's order by way of appeal and revision. 2. In the year 1952 opposite parties 4 to 7 filed a suit against the petitioner Mata Din under Section 160 of the U.P. Tenancy Act, asking for his ejectment from certain plots and claiming damages. This suit was decreed on August 11, 1953. The decree was put into execution on July 26, 1955, and the decree-holders obtained possession of the disputed plots on or about. October 10, 1955. There upon the petitioner filed an objection under Section 47 C.P.C. before the execution court (the Judicial Officer of Handia), asking for restoration of possession on the ground that the decree had become time-barred by the time it was put into execution on July 26, 1955. This objection was dismissed on December 7, 1955 by the first of the impugned orders, on the ground that the decree under Section 180 of the U.P. Tenancy Act was a money decree and consequently the period of limitation was three years under Serial 5 of Group F of the Fourth Schedule of the Act. This decision has been affirmed by the commissioner in appeal and by the Board of Revenue in revision, reliance being placed on an earlier decision of the Board reported in Indrajit v. Bhikari Lal, 1943 RD 335. 3. The contention of the petitioner is that the impugned orders are clearly wrong because the period of limitation for executing the decree in the present case, in so far as it related to possession of the disputed land, was only one year by virtue of Serial No. 7 of Group F of the Fourth Schedule of the Act. The contesting respondents on the other hand maintain that the impugned decision were correct in calculating the limitation in accordance with Serial No. 5. 4. The relevant provisions of Group V of the Fourth Schedule of the U.P. Tenancy Act that call for interpretation runs as follows :- 5. The contesting respondents on the other hand maintain that the impugned decision were correct in calculating the limitation in accordance with Serial No. 5. 4. The relevant provisions of Group V of the Fourth Schedule of the U.P. Tenancy Act that call for interpretation runs as follows :- 5. For the execution of a money decree or a decree under Section 180 or Section 183 in as far as it relates to the payment of damages or compensation not being a decree for a sum exceeding Rs. 500/- inclusive of the costs of executing such decree, but exclusive of any interest which may have accrued after decree upon the sum decreed. } Three years. 6. For the execution of any money decree or a decree under Section 180 or Section 183 in as it relates to the payment of damages or compensation for a sum of money exceeding Rs. 500/- inclusive of the costs of executing such decree, but exclusive of any interest which may have accrued after decree upon the sum decreed. } The period allowed for the execution of a decree of the civil court. 7. For the execution of any decree other than a money decree. } One year. 5. In the earlier ruling of the Board (1943 R.D. 335)on which the impugned orders are based, we find the following observations :- "If a decree includes any other relief besides an order for the payment of money, then the decree is not a money decree. But an exception has now been created to this items 5 and 6 of Sch. 4, Group F of the U.P. Tenancy Act. These items now lay down that the portion of a decree which is for damages or compensation in suits under Sections 180 and 183 of the U.P. Tenancy Act should be treated as a money decree even though the decree may include a relief of another king viz., ejectment". 6. In the same ruling it has further been remarked as follows :- "Similarly in Ram Lal Singh v. Muezam Ali, 1942 RD 391 the decree included a relief for ejectment as well as for damages and costs. The decree-holder applied separately for the execution of decree so far as it related to damages and costs and claimed that it should get the limitation prescribed for a money decree. The decree-holder applied separately for the execution of decree so far as it related to damages and costs and claimed that it should get the limitation prescribed for a money decree. This plea will now be permissible under items 5 and 6, Group F of Section 4 if the U.P. Tenancy Act". 7. In the present case the decree that was passed under section 180 of the U.P. Tenancy Act was both for possession and for damages. The Assistant Collector and the Additional Commissioner, relying on the above quoted ruling of the Board Indrajit v. Bhikari Lal, 1943 R.D. 335 have held that since the decree granted the relief of damages it must be treated as a money decree falling under serial No. 5 of Group F of the Fourth Schedule of the Act. It is clear, however, that in arriving at this conclusion they have mis-interpreted what was actually said in the entire case. All that has been laid down in the ruling referred to is that "that portion of the decree which is for damages or compensation in suits under Section 180 and 183 of the U.P. Tenancy Act should be treated as a money decree even though the decree may include a relief of another kind viz. ejectment.". In other words it has not been held that the whole decree should be treated as a money decree, but only that portion which is for damages should be treated as a money decree. And the second quotation given above from the same ruling shows that the Board recognised the right of the decree holder to apply separately for the execution of that part of the decree relating to damages. 8. The impugned orders therefore cannot be sustained on the basis of Indrajit v. Bhikari Lal. And from a reading of serial no. 5 of group F of the Fourth Schedule of the U.P. Tenancy Act it is clear that the limitation of three years is allowed for execution of a decree under Section 180 only. In as far as it relates to the payment of damages or compensation. And from a reading of serial no. 5 of group F of the Fourth Schedule of the U.P. Tenancy Act it is clear that the limitation of three years is allowed for execution of a decree under Section 180 only. In as far as it relates to the payment of damages or compensation. This implies that although the limitations for execution in as far as the decree relates to damages will be three years the period of limitations for execution in as far as it relates to ejectment of recovery of possession will not be covered by serial No. 5, but must fall instead under serial No. 7, which prescribes a period of one year only. 9. I am satisfied therefore that there is an error apparent on the face of the record in the impugned decisions of the Assistant Collector, the Additional Commissioner and the Board of Revenue. Learned counsel for the contesting respondents, however, has argued that no writ should issue in the petitioner's favour because the application filed by the petitioner under Section 47 C.P.C on the basis of which the impugned decisions were passed, was not legally maintainable. His contention is that once the execution court has disposed of the execution application by delivering possession of the disputed plots to the decree holder on October 10, 1955 that court became functus officio and could not entertain or dispose of any further application from either of the parties. This view, however would lead to a highly anomalous position, for it would mean that a person from whom possession was seized without notice in execution of limitation or any defective by reason of limitation or any other cause would have no redress. Section 47 C.P.C lays down that all questions arising between the parties relating to the execution, discharge or satisfaction of the decree shall be determined by the court executing the decree and not by a separate suit; and this section would still apply even if the execution application and had thereby become functus officio. Section 47 C.P.C lays down that all questions arising between the parties relating to the execution, discharge or satisfaction of the decree shall be determined by the court executing the decree and not by a separate suit; and this section would still apply even if the execution application and had thereby become functus officio. In the present instance, if the petitioner had tried to recover possession by filling a separate suit against the decree-holders, his suit would have been thrown out on account of the bar introduced by section 47 C.P.C. It is obvious in the circumstances that unless there is some very compelling argument to the contrary the petitioner should be held to be entitled to seek redress by filling an application to the executing court under Section 47 C.P.C even though that court had already disposed of the execution application. Learned counsel for the contesting respondents has not been able to cite any ruling in his favour that deals directly with this point. On behalf of the petitioner, on the other hand, reliance is placed on B.V. Patankar and others v. C.G. Swatry, AIR 1961 SC 272 , in which it was clearly held that even after possession has been delivered to a decree-holder and the execution application has been disposed of by the executing court to have the ex-parte delivery of possession set aside and to obtain re-delivery of possession, if he can show that the decree that had been executed was un-enforceable on account on some legal bar. In that case the bar to the execution of the decree was provided by the Mysore House Rent and Accommodation Control Order 1948, which was in operation on the date of the eviction of the judgement-debtor and it was held that in view of that Order the ex-parte delivery if possession to the decree-holder in execution of his decree was contrary to law and could be set aside by the executing court under Section 47 read with Section 151 C.P.C. The case with which we are at present concerned is analogues, the only difference being that the legal bar to the execution of the decree arises under the Control Order. The objection now raised on behalf of the responsibility of the petitioner's application under section 47 C.P.C. therefore, must fail. 10. The objection now raised on behalf of the responsibility of the petitioner's application under section 47 C.P.C. therefore, must fail. 10. This writ petition is accordingly allowed with costs, the impugned orders of December 7, 1955, April 6, 1957 and October 27, 1958 being quashed. The Assistant Collector shall now readmit the petitioner's objection under Section 47 C.P.C. and dispose of it according to law in the light of the observations made above.