D. K. Kapur ( 1 ) THIS is an appeal by the landlord, Kharaiti Ram Nayar against his tenant, K. B. Advani which isbrought against the order of the Rent Control Tribunal directing thetenant to be put back in possession of the demised premises. The ejectment application filed by the landlord resulted in an eviction decreebeing passed by the Rent Controller ex-parte against the tenant on 10/06/1968. The landlord applied for execution of the evictionorder a id obtained possession of the demised premises on 15/07/1968. The tenant filed an application for setting aside the ex-parteeviction order which resulted in the order being set aside eventually on 18/09/1969. Thereafter, the tenant applied for restorationof possession. The Rent Controller dismissed this application on l 7/11/1970 on the view that no restitution could be allowed. Thetenant appealed to the Tribunal, it was held on this appeal that therent Controller had the powers of a civil court while executing a decreeand hence the Controller had power to restore the premises to thetenant. The appeal was accordingly accepted, a direction was madeby the Tribunal to the Controller to issue warrants for delivery of possession in favour of the tenant. The landlord has now appealed to thiscourt. ( 2 ) IN support of this appeal, Mr. A. C. Sehgal, learned counselfor the appellant urges that the Rent Control Tribunal erred in direct-ing the issue of warrants for delivery of possession; it is said that thelandlord had let out the premises in dispute to other tenants and hencethis was a case in which restoration should have been refused, or, atleast the case should have been remanded back to the Controller todecide whether a restitution should be made. It is also urged that thetribunal erred in holding that the Rent Controller had the power toorder restitution. ( 3 ) AS far as the first point is concerned, it is necessary to mention that the Rent Controller decided this case only on the preliminaryobjection conerning the power of the Rent Controller to order restitution. No order was passed regarding the rights of tenants who hadbeen let in by the landlord in the premises in question pending thedecision of the tenant s application to set aside the ex-parte evictionorder. The facts show that the application for setting aside the ex-parte decree was moved on 15/07/1968 and the new tenants arestated to have been let in by the landlord on 1/09/1968. The facts show that the application for setting aside the ex-parte decree was moved on 15/07/1968 and the new tenants arestated to have been let in by the landlord on 1/09/1968. Thesetenants cannot have any rights superior to the landlord himself andeven otherwise the doctrine of lis-pendens would apply to any interestcreated by the landlord subsequent to the initiation of proceedings bythe tenant to set aside the ex-parte eviction order. The wording ofsection 144 of the Code of Civil Procedure is mandatory. Once theeviction order had been set aside, any advantage obtained by the landlord from that order had to be restored to the tenant. This meantthat the tenant had to be put back in possession. Any other interestcreated by the landlord in the meantime would be subordinate to thetenant s rights regarding restitution. I, therefore, hold that the Tribunal rightly directed that warrants for delivery of possession shouldissue as there was nothing else that had to be decided in this case. Moreover, the order of the Rent Controller was passed after nearingfinal arguments. is on the application for restoration of posssssion andnothing more remained for the Controller to do. I asked Mr. Sehgalto urge before me any point that he wished to show that restitution. should not be ordered is this case because, assuming that a restorationorder could be made. His only submission his been that thetenant should be awarded damages instead of possession. I do notthink this is possible in restitution proceedings. Even it it is, I do notthink this is a case in which damages would be a substitute for possession of the demised premises. ( 4 ) THE second point urged by Mr. Sehgal turns on the interpretation of Section 42 of the Delhi Rent Control Act, 1958. That Sectiongives to the Rent Controller the powers of a Civil Court while excuting its own decrees. Thus, the Rent Controller is entitled to executean eviction order as if it was an eviction decree passed by a Civilcourt It is urged by Mr. Sehgal that the execution of an evictionorder is very different from the restitution of possession in case aneviction order is set aside This matter is not at all free from difficultybut is settled to some extent by the judgment of the Supreme Court ismahajibhai Mohunbhai Barot v. Patel Manibhai Gakalbhai which is thejudgment relied upon by the Rent Control Tribunal. Sehgal that the execution of an evictionorder is very different from the restitution of possession in case aneviction order is set aside This matter is not at all free from difficultybut is settled to some extent by the judgment of the Supreme Court ismahajibhai Mohunbhai Barot v. Patel Manibhai Gakalbhai which is thejudgment relied upon by the Rent Control Tribunal. ( 5 ) IN that case it was held that Section 144 was introduced intothe Code in order to avoid the earlier conflict regarding the procedureto be followed when a decree was set aside. The Section expressly barsthe filing of a suit. It was also held by the Court on the basis of thedecision of the Privy Council in Jai Berham v. Kedar Nath Marwari,that section 144 did not create any rights of resitution but merely regulated the procedure. Subsequently, in !he course of the judgment it wasindicated that an order passed in appeal also resulted in -an appellatedecree which had to be implemented just like the original decree. Thejudgment continued thus :- "the application flows from the appellate decree and is filed toimplement or enforce the same. He is entitled to the relief of restitution, because the appellate decree enables him to obtain that relief, either expressly or by necessary implication. He is recoveringthe fruits of the appellate decree. Prima facie, therefore, having regard to the history of the section, there is no reason why such anapplication shall not be treated as one for the execution of the appellate decree. "i do riot see why this passage should not be equally applicable to anorder setting aside an ex-parte decree. If a Rent Controller can fur thepurpose of executing an appellate eviction order passed by say, the Rentcontrol Tribunal put back the tenant in possession, I cannot see whyhe cannot do likewise if the order soughs, to be executed is an order setting aside an eviction order which has already been executed. Primafacie,the order setting aside an eviction order is also anorder of thecontroller which is executable by theController. I may reproduce thelanguage of Section 42 of the Delhi Rent Control Act, 1958. Primafacie,the order setting aside an eviction order is also anorder of thecontroller which is executable by theController. I may reproduce thelanguage of Section 42 of the Delhi Rent Control Act, 1958. Itruns as under :- "save or otherwise provided in Section 41, an order made bythe Controller or an order passed on appeal under this Act shall 0sexecutable by the Controller as a decree of a civil court and for thispurpose, the Controller shall have all the powers of a civil Court. "it will be noticed that an order made by the Controller is executable asa decree of the civil court. The order setting aside an eviction ordermay be passed after the order has already been executed. In such acase it is the duty of the Controller to restore the parties to the samesituation that they enjoyed before the order was passed. If the Controller does not have such power he cannot of course do this. In my view,the decision of the Supreme Court lays down that an application for restitution has to be treated as an application for execution. The Supremecourt was dealing only with the situation arising at the appellate stagei think the same situation arises also if an ex-parte eviction order isset aside. ( 6 ) A trial of a suit terminates when a decree or executable orderis passed. Thereafter, proceedings are concerned with the execution ofthe decree or order. An order for restitution can only be passed if anorder for execution has already been passed. Restitution proceedingshave to take place long after the trial of the suit is over and even afterthe execution has taken place, in the present case the trial terminated inan ex parte eviction order which was set aside. Execution of that ordertook place, but when the order was set aside the Rent Controller in furtherence of the execution proceedings had to restore the status quo ante. This order for restitution, as had by the Tribunal cannot be consideredto be a continuance of the trial of the eviction case but must be treatedas a continuance of the execution proceedings. I, therefore, hold thattie Controller did have jurisdiction to pass an order under Section 144of the Code of Civil Procedure. A reference has been made by Mr. Sehgalto two decisions of the Madras High Court reported as A. Arunagiri Nadarv. S. P. Rathinasami, and Mohammed Hussain v. A. K. M. Pitchai. I, therefore, hold thattie Controller did have jurisdiction to pass an order under Section 144of the Code of Civil Procedure. A reference has been made by Mr. Sehgalto two decisions of the Madras High Court reported as A. Arunagiri Nadarv. S. P. Rathinasami, and Mohammed Hussain v. A. K. M. Pitchai. Thesetwo decisions take opposite views regarding the powers of the Court topass orders for restitution after ex pane eviction decrees have been passed. Neither of them has REFERRED TO to the Supreme Court s judgment aforementioned. In view of the reasoning above, I come to the conclusionthat the ratio of the Supreme Court s decision is applicable to thefacts of the present case and, hence the order for restitution has rightlybeen passed by the Tribunal and has to be affirmed in this appeal. ( 7 ) THIS appeal is, therefore, dismissed but the parties are left to bear their own costs. The parties to appear before the Controller on 5th June, 1972.