ORDER This writ petition under Articles 226 and 227 of the Constitution of India is filed being aggrieved by the order passed by the Court of Civil Judge (Junior Division), Mangalore in H.RC. No. 30 of 1995, dated 24-2-2003 holding that the application filed for restitution under Section 144 of the CPC, pending in execution would abate in view of the provisions of Section 70(2)(c) of the Karnataka Rent Act, 1999 (for short, 'the Act’). 2. It is the contention of the petitioner that respondent herein filed eviction petition against the petitioner seeking for eviction of the petitioner and possession of the premises under Section 21(1)(h) of the Karnataka Rent Control Act, 1961 in H.RC. No. 30 of 1995. The said petition was decreed ex parte. Being aggrieved by the same, the petitioner preferred RRP. No. 91 of 1995 and the ex parte order of eviction passed in H.RC. No. 30 of 1995 was set aside by allowing the application filed for setting aside the ex parte order. However, in the meanwhile since the respondent had taken possession of the schedule premises by executing the ex parte decree passed in favour of the respondent, application was filed under Section 144 of the Civil Procedure Code, for restitution of the possession of the schedule premises to the petitioner as the order of eviction pursuant to which possession was taken was set aside by the Revisional Court of District Judge, Dakshina Kannada, by order dated 16-10-1995. During the pendency of the said execution petition for restitution, application for restitution under Section 144 of the CPC came into force and since the extent of schedule premises is more than 14 squares and is nonresidential premises, the eviction petition stood abated. In view of the provisions of the Section 70(2)(a) of the Act read with Section 2(3)(g) of the Act. However, it was also contended that since the eviction petition itself has abated, the application filed under Section 144 of the CPC, for restitution numbered as Execution No. 175 of 1997 also stood abated and accepting the contention of the respondent, the Trial Court of Principal Civil Judge, Mangalore has passed impugned order dismissing the execution petition as abated and being aggrieved by the same, the present writ petition is filed. 3. I have heard the learned Counsel appearing for the parties. 4. 3. I have heard the learned Counsel appearing for the parties. 4. The learned Counsel appearing for the petitioner submitted that respondent had taken possession of the schedule premises pursuant to an ex parte decree for eviction passed in H.R.C. No. 30 of 1995, dated 22-4-1995 and since the said order of eviction has been set aside, application was filed for restitution of possession in favour of the petitioner and the same was numbered as Execution No. 175 of 1997 and the order passed by the Trial Court holding that execution petition which is an application filed under Section 144 of the CPC, for restitution would also abate is clearly without jurisdiction. The learned Counsel submitted that when the eviction order pursuant to which possession had been taken has been set aside in revision, the respondent is not entitled to continue in possession and wherefore application was filed for restitution and the same ought to have been considered on merits independent of the provisions of the Act as the application is filed under Section 144 of the CPC. In support of his contention, he has relied upon the decision of this Court in V. Babulal v M.KM. Shariff1, wherein this Court under similar circumstances wherein ex parte eviction order against the tenant was set aside and an application was filed under Sections 144 and 151 has held that the application under Section 144 of the CPC is maintainable under the provisions of the Code as petitioner is asking for restitution pursuant to setting aside of the ex parte order. 5. On the other hand, learned Counsel appearing for the respondent submitted that in view of the provisions of Section 2(3)(g) and Section 70(2)(c) submitted that the dismissal of application for restitution which had been registered as Execution No. 175 of 1997 is justified. 5. On the other hand, learned Counsel appearing for the respondent submitted that in view of the provisions of Section 2(3)(g) and Section 70(2)(c) submitted that the dismissal of application for restitution which had been registered as Execution No. 175 of 1997 is justified. In support of his contention he has relied upon the observations made by the Hon'ble Supreme Court in Mahendra Saree Emporium v G. V Srinivasa Murthy2, wherein Hon'ble Supreme Court has observed as follows.- "Similarly if the pending proceedings are those in which the tenant has put in issue a decree or order of eviction, he need not be allowed to pursue the same inasmuch as even if he succeeds, it will always be open for the landlord to initiate fresh proceedings of eviction wherein he would be able to secure the same order of eviction which more ease. The scheme of the New Legislation and its comparative reading with the provisions of the preceding legislation make such interpretation more reasonable and sensible". 6. He has also relied upon the Division Bench decision of this Court in Hassanbaba S.P. and Others v Honnappa Venkatappa Naik3, wherein it is held that any order passed in execution of the eviction petition is revisable under the provisions of Section 115 of the CPC. 7. I have considered the contention of the learned Counsel appearing for the parties with reference to the material on record. 8. It is clear from the perusal of the material on record that the fact that the respondent had filed eviction petition in H.RC No. 30 of 1995 against the petitioner seeking for possession of the schedule premises on the ground that reasonably and bona fidely required under the provisions of Section 21(1)(h) of the Rent Control Act, 1961 and in the said proceeding the petitioner herein who was the respondent in the eviction petition was placed ex parte and thereafter an ex parte order of eviction was passed on 22-4-1995 is not in dispute. It is also not in dispute that the ex parte decree passed against the petitioner has been set aside in RRP. No. 91 of 1995 by order dated 16-10-1995. It is also not in dispute that the ex parte decree passed against the petitioner has been set aside in RRP. No. 91 of 1995 by order dated 16-10-1995. However, since possession of the schedule premises had been taken pursuant to the ex parte decree obtained by the respondent against the petitioner application was filed under Section 144 of the CPC, for restitution of the possession of the schedule premises in favour of the petitioner as the order of eviction was set aside and matter was remitted to the Rent Control Court for disposal of the petition, in accordance with law. There is no dispute that the ex parte decree was passed and possession was taken and ex parte decree was set aside and application for restitution was filed much before the Act came into effect from 31-12-2001 and wherefore, it is clear that the proceeding for restitution under Section 144 of the CPC, had already been filed much before the Act came into force and was pending consideration in Execution No. 175 of 1997. It is clear from the decision of this Court in Babulal's case, that when an ex parte order of eviction is set aside and tenant makes an application for restitution the same is maintainable under Sections 144 and 151 of the CPC and Section 70 of the Act dealing with repeal and saving provides notwithstanding such repeal and subject to the provisions of Section 69 that transfer of pending cases by proceedings in execution of any decree or order passed under the repealed Act and pending at' the commencement of the Act in any Court shall continue and dispose of by such Court as if such enactment not been repealed and Section 70(2)(b) provides for pending of cases and proceedings other than wherein new Act would not be applicable and clause (c) of Section 70(2) deals with other cases and proceedings pending in respect of premises to which Act does not apply shall from the date of commencement of the Act shall stand abated. It is clear from the perusal of the said section that in view of clause (c) of Section 70(2) of the Act, the Trial Court has rightly held that the eviction petition which was remitted after setting aside the ex parte order of eviction abates and the said order is justified. It is clear from the perusal of the said section that in view of clause (c) of Section 70(2) of the Act, the Trial Court has rightly held that the eviction petition which was remitted after setting aside the ex parte order of eviction abates and the said order is justified. However, so far as the order dismissing the application filed under Section 144 of the CPC, as abated is clearly erroneous and without jurisdiction as it would be a proceeding under clause (a) of Section 70(2) of the Act. Any other interpretation would lead to anomalous result as the very eviction petition which was filed against the petitioner by the respondent has stood abated by virtue of the Act. However, he has taken possession pursuant to the ex parte decree passed before coming into force of 1999 Act and the order of eviction pursuant to which possession had been taken has been set aside and matter was remitted for fresh disposal on merits and wherefore the application is filed under Section 144 read with Section 151 of the CPC, for restitution which is maintainable as held above. Under the circumstances, it is clear that the application for restitution ought to have been decided independently and the order dismissing the said application for restitution under Section 144 as abated is clearly erroneous and without jurisdiction. Under the circumstances, order impugned in the writ petition is wholly without jurisdiction and cannot be sustained and is liable to be quashed. Accordingly, the impugned order passed by the Court of Principal Civil Judge (Junior Division), Mangalore, Dakshina Kannada dismissing Execution Petition No. 175 of 1997 as abated is set aside and it is held that the Execution Petition No. 175 of 1997 does not abate and the Principal Civil Judge (Junior Division), Mangalore, Dakshina Kannada is directed to dispose of the application on merits, in accordance with law. All the contentions of the parties pertaining to restitution are kept open to be urged before the Trial Court. Accordingly, the writ petition is disposed of.