Chandan Mall Bapna v. Abdul Gani Meah — 1976 DIGILAW 3 (GAU)

Judgement JUDGMENT:- This appeal is by the judgment-debtor and arises out of an execution case. 2. The material facts are as follows : The respondent (Plaintiff-decree holder) obtained an ex parte decree in the Court of the Munsiff, Goalpara, in Title Suit No. 401 of 1967 for eviction of the appellant from, and recovery of khas possession of, certain house and premises situated in the Bongaigaon town in the District of Goalpara and also for rents at the rate of Rs. 200/- per month. The respondent filed Title Execution Case No. 17 of 1972 in the Court of the Munsiff, Goalpara, for the execution of the said decree. The appellant filed an objection under Section 47 of the Code of Civil Procedure (hereinafter called the Code) against the execution of the decree. His objection was that he had never agreed to pay to the respondent rent at the rate of Rs. 200/- per month; that he had filed Misc. Case No. 7/67 against the respondent in the Court of the Munsiff for fixing fair rent and the Munsiff fixed fair rent at Rs. 65/- per month; and that he paid the rents in full at the rate of Rs. 65/- per month from May, 1967 to October, 1972 by challans into the Treasury and issued notices to the respondent to withdraw the amount. He further alleged that the respondent concealed all these facts from the knowledge of the Court and fraudulently obtained the ex parte decree. He pleaded that the decree was null and void and as such inexecutable. 3. The respondent filed a rejoinder to the appellants objection. He did not deny the allegations made by the appellant in his objection to the execution of the decree. His plea was to the effect that in the executing Court the judgment-debtor could not challenge the decree obtained by him in Title Suit No. 401/67. 4. The executing Court in its order has referred to the evidence of P. W. 1, who was the appellant himself, and P. W. 2. P. W. 1 deposed that he had agreed to pay house rent at the rate of Rs. 150/- per month to the respondent from 1966 on the condition that the godown would be made pucca and a sanitary latrine would be constructed and that in total he paid to the respondent Rs. 1,900/- as house rent at the rate of Rs. 150/- per month to the respondent from 1966 on the condition that the godown would be made pucca and a sanitary latrine would be constructed and that in total he paid to the respondent Rs. 1,900/- as house rent at the rate of Rs. 150/- per month and he was granted receipts for the payments but, as the respondent demanded rent at the rate of Rs. 200/- per month, he made an application before the Munsiff for fixation of fair rent and obtained an order from the Court fixing fair rent at Rs. 65/- per month. P. W. 2 was a neighbour of P. W. 1 carrying on business in the vicinity of the appellant. He deposes that he saw the appellant paying rents at the rate of Rs. 150 per month. The appellant, however, did not produce in Court the order of the Munsiff fixing fair rent at the rate of Rs. 65/- per month, as alleged, and deposed to by the appellant, nor did he produce receipts showing payments of rents as alleged and deposed to by him, and, as such, the executing Court rejected the appellants case, holding that the executing Court could not go behind the decree. The appellant filed an appeal before the District Judge, who upheld the order of the executing Court, and held that the executing Court could not go behind the decree. 5. Dr. J.C. Modhi, learned Advocate-General, Assam, appearing for the appellant, submits that the decree sought to be executed is a nullity, not being in conformity with proviso (e) to sub-section (1) of Section 5 of the Assam Urban Areas Rent Control Act (hereinafter called the Act). On the other hand, Shri J.N. Sarma, learned counsel appearing for the respondent, submits that an executing Court cannot go behind the decree, and, as such, the orders of the learned Courts below are valid. In support of his contention, learned counsel for the respondent, relies on AIR 1949 PC 8 and AIR 1951 SC 189 . On the other hand, Shri J.N. Sarma, learned counsel appearing for the respondent, submits that an executing Court cannot go behind the decree, and, as such, the orders of the learned Courts below are valid. In support of his contention, learned counsel for the respondent, relies on AIR 1949 PC 8 and AIR 1951 SC 189 . In AIR 1949 PC 8, their Lordships of the Privy Council have held : "An execution Court cannot go behind the decree and question its correctness; but when the decree is silent, and gives no indication as to what property should be sold in execution, it is permissible for the Court to look into the judgment in order to find out whether upon any issue properly raised and determined as between the parties interested the property brought to sale has been held to belong to the judgment-debtor." In AIR 1951 SC 189 , their Lordships of the Supreme Court have held : "The duty of an executing Court is to give effect to the terms of the decree. It has no power to go beyond its terms. Though it has power to interpret the decree, it cannot make a new decree for the parties under the guise of interpretation." The general rule is that an executing Court cannot go behind the decree sought to be executed. But this is not the inflexible rule. Their Lordships of the Privy Council and the Supreme Court themselves in the above decisions have pointed out when the executing Court can examine the decree. Their Lordships of the Supreme Court in 1973 (2) SCC 40 : ( AIR 1972 SC 1371 ) have succinctly put the law : "But that does not mean that it (the executing Court) has no duty to find out the true effect of that decree. For construing a decree, it can and in appropriate cases, it ought to, take into consideration the pleadings as well as the proceedings leading upto the decree. In order to find out the meaning of the words employed in a decree the Court often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it. In order to find out the meaning of the words employed in a decree the Court often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it. The jurisdiction of execution Court does not begin and end with merely looking at the decree as it is finally drafted." There may be other circumstances in which the executing Court can go behind the decree: for example (i) The Court can see whether or not the decree is a nullity and not executable, such as, a decree by a Court without jurisdiction or a decree against a minor not properly represented in the suit. Such decrees are null and void and not executable, and the Court cannot execute such decrees, (ii) There may be cases in which a decree sought to be executed is barred by subsequent legislation that bars a suit or a decree or its execution, in which case also the executing Court shall refuse to execute the decree (See AIR 1962 SC 1230 ). (iii) There may be a third category of cases in which the decree sought to be executed is not in conformity with, or in violation of, certain mandatory provisions of law. 6. Section 47 of the Code provides : "47. (1). All questions arising between the parties to the suit in which the decree was passed, or their representative, and 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. (2) ... ... ... (3) ... ... ... Explanation- ... .... " Sub-section (1) of Section 47 is mandatory, as a separate suit for determination of the questions relating to the execution, discharge or satisfaction of the decree by a separate suit has been barred. The plea of the judgment-debtor may be that the decree has not been satisfied or discharged or that it is not executable. In my opinion the expression "relating to the execution .............. of the decree covers the question of executability or non-executability of a decree. The plea of the judgment-debtor may be that the decree has not been satisfied or discharged or that it is not executable. In my opinion the expression "relating to the execution .............. of the decree covers the question of executability or non-executability of a decree. In other words, if the decree be a void decree being a decree passed by a Court without jurisdiction or a decree not in conformity with or in violation of certain mandatory provisions of law or barred by certain statutory provisions it cannot be executed; and if an objection is taken by the judgment debtor to that effect the executing Court shall have to decide it under Section 47 of the Code. 7. The learned Advocate General submits that the decree in the present case not in conformity with Section 5 (1) read with proviso (e) of the Act. This provision may be set out: "5. (1). No order or decree for the recovery of possession of any house shall be made or executed by any Court so long as the tenant pays rent to the full extent allowable under this Act and performs the conditions of the tenancy : Provided that nothing in this sub-section shall apply in a suit or proceedings for eviction of the tenant from the house : .... ..... .... (e) where the tenant has not paid the rent lawfully due from him in respect of the house within a fortnight of its falling due, or ... .... ...." The learned Advocate Generals submission is that it must appear from the decree that the judgment-debtor has not paid the rents to the full extent allowable under the Act within the prescribed period of a fortnight of its falling due, and in support of his contention, he relies on AIR 1970 SC 794 . In that case the decree-holder obtained a compromise decree for eviction from certain premises in Delhi under Section 13 of the Delhi and Ajmer Rent Control Act. The suit for eviction was, inter alia, on the ground that the suit premises were sub-let. Under the compromise decree some time was given to the judgment-debtors to vacate the premises, but as the judgment-debtors failed to do so, the decree-holder filed execution. The suit for eviction was, inter alia, on the ground that the suit premises were sub-let. Under the compromise decree some time was given to the judgment-debtors to vacate the premises, but as the judgment-debtors failed to do so, the decree-holder filed execution. In the execution an objection, inter alia, was taken that the decree was passed in contravention of Section 13 of the Rent Control Act, and as such, a nullity and not executable. Section 13 (1) of the Delhi and Ajmer Rent Control Act, 1952, is as follows : "Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated) : Provided that nothing in this sub-section shall apply to any suit or other proceeding for such recovery of possession if the Court is satisfied ..... (b) that the tenant without obtaining the consent of the landlord in writing has, after the commencement of this Act ...... (i) sublet, assigned or otherwise parted with the possession of, the whole or any part of the premises." Interpreting the above provision, their Lordships have observed: "From this provision, it is clear that after the Rent Control Act came into force, a decree for recovery of possession can be passed by any Court only if that Court is satisfied that one or more of the grounds mentioned in Section 13 (1) are established. Without such a satisfaction, the Court is incompetent to pass a decree for possession. In other words, the jurisdiction of the Court to pass a decree for recovery of possession of any premises depends upon its satisfaction that one or more of the grounds mentioned in Section 13 (1) have been proved." Their Lordships further observed that it did not appear that the Court that passed the compromise decree applied its mind to the question whether the alleged sub-letting was true or not. Their Lordships further observed that the order passed by the Court did not disclose that it was satisfied that the sub-letting complained of did take place and that the Court had proceeded solely on the basis of the compromise arrived at between the parties and held that the Court was not competent to pass such a decree. Their Lordships further observed that the order passed by the Court did not disclose that it was satisfied that the sub-letting complained of did take place and that the Court had proceeded solely on the basis of the compromise arrived at between the parties and held that the Court was not competent to pass such a decree. The above observations of their Lordships of the Supreme Court clinches the point before us. 8. The purpose of the Act is to save the tenants from the clutches of landlords charging exhorbitant rents, and, as such, Section 3 of the Act provides: "No landlord shall be entitled to charge rent for any house at a figure higher than the standard rent." Standard rent has been defined under S.2 (e) as follows : " Standard rent in relation to any house means the rent calculated on the basis of annual payment of an amount equal to seven and half per cent of the aggregate amount of the estimated cost of construction and the market price of the land together with the total municipal taxes payable in respect of the house and Urban Immovable Property Tax under the Assam Urban Immovable Property Tax Act, 1969, and monthly rent shall be equal to one-twelfth of the annual payment so calculated; Provided that ... ... Explanation : ... ..." Section 5 of the Act bars decree for eviction and execution of such decree. Sub-section (1) of Section 5 of the Act is mandatory. It bars a decree or order for recovery of possession of any house by any Court so long as the tenant pays rent to the full extent allowable under the Act and performs the condition of tenancy. But the tenant will not get the benefit of sub-section (1) if he has not paid the rent fully due from him in respect of the house within a fortnight of its falling due in view of proviso (e) to sub-section (1) of Section 5. In my opinion the rent allowable under this Act within the meaning of Section 5 (1) is the standard rent, and rents claimed above the standard rent has been barred under Section 3. If a decree allowing rent above the fair rent is passed, such a decree and its execution are barred under sub-section (1) of Section 5. In my opinion the rent allowable under this Act within the meaning of Section 5 (1) is the standard rent, and rents claimed above the standard rent has been barred under Section 3. If a decree allowing rent above the fair rent is passed, such a decree and its execution are barred under sub-section (1) of Section 5. The proviso to sub-section (1) is also mandatory as it is meant to safe-guard the interests of the tenant. If the tenant does not pay the rent fully due within the period under proviso (e) he would not get the benefit of sub-sec. (1) of Section 5. In my opinion "rent lawfully due from him in respect of the house", means fair rent. Therefore a decree not passed in conformity with Section 5 (1), Proviso (e) or in violation of it, is barred by Section 5 and so also its execution. 9. Learned counsel for the respondent submits that the appellant did not produce before the Court the order of the Court fixing fair rent nor did he file any receipts showing payments to the full extent and within the prescribed time. The appellant has produced certain documents before me at the time of hearing. It was not known under which provision of law he did so. No application for accepting the documents as additional evidence was made. They cannot be accepted at this stage of hearing of the second appeal. 10. In the objection, however, as stated in the beginning of this judgment, the appellant categorically stated that the fair rent was fixed by the Munsiff at the rate of Rs. 65/- per month in respect of the suit premises in Misc. Case No. 7/67 and that he paid the aforesaid rents in full through treasury chalans and that he was not in arrears of rents. The said allegations were not denied by the decree-holder in his rejoinder. In such circumstances it shall be presumed that the respondent impliedly admitted those allegations. 11. Be that as it may, it was the duty of the Court that passed the decree to apply its mind to the conditions laid down under Section 5 (1), proviso (e) of the Act. In such circumstances it shall be presumed that the respondent impliedly admitted those allegations. 11. Be that as it may, it was the duty of the Court that passed the decree to apply its mind to the conditions laid down under Section 5 (1), proviso (e) of the Act. It was its duty to find and record in the decree, albeit ex parte, that the rents decreed was allowable under the Act and that there was a default on the part of the appellant in depositing the rents within the fortnight of its falling due. As he has not done so the decree was in violation of Section 5 (1), Proviso (e) of the Act; such a decree and its execution are barred under Section 5 (1) of the Act. 12. In the result the orders of the learned Courts below are set aside. The appeal is allowed. I leave the parties to bear their own costs. Appeal allowed.