B. V. Patankar and Others vs C. G. Sastry

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 302 of 1955

Decision Date: 8 September 1960

Coram: J.L. Kapur, Bhuvneshwar P. Sinha, P.B. Gajendragadkar, K.N. Wanchoo

The case titled B. V. Patankar and Others versus C. G. Sastry was decided on 8 September 1960 by the Supreme Court of India. The judgment was delivered by Justice J. L. Kapur, with Justices Bhuvneshwar P. Sinha, P. B. Gajendragadkar and K. N. Wanchoo forming the bench. The petitioners were B. V. Patankar and others, and the respondent was C. G. Sastry. The official citation for the decision is reported in 1961 AIR 272 and 1961 SCR (1) 591, with subsequent citations recorded as R 1967 SC1193, R 1980 SC 214, and RF 1991 SC 1094. The matter involved provisions of rent control law, specifically the Mysore House Rent and Accommodation Control Order of 1948, sections 9 and 16, and their interaction with the Transfer of Property Act of 1882 (Act IV of 1882) and the Code of Civil Procedure, Acts V of 1908, sections 47 and 151. The core issue concerned restrictions against eviction of tenants, the legality of a decree for possession of a house, delivery of possession in the absence of the tenant, and whether the executing court had ignored statutory restrictions, raising questions of legality and possible repugnancy between the two statutes.

The factual backdrop was that the appellants, having obtained a decree for possession of a house, actually took possession on 22 July 1951. The order for delivery of possession was issued without any notice to, and while the respondent was absent from, the premises. In response, the respondent filed an application in the executing court under sections 47, 144 and 151 of the Code of Civil Procedure, seeking to set aside the ex‑parte delivery order and to have the possession redelivered to him, or alternatively, to obtain an order directing the appellants to provide facilities for removing movable goods from the house. The executing court dismissed the respondent’s application, holding it was not maintainable. On appeal, the High Court ruled that the executing court lacked jurisdiction to order the respondent’s eviction because the Mysore House Rent and Accommodation Control Order of 1948, which was in force on the date of eviction, imposed specific restrictions under its sections 9 and 16 on the eviction of tenants. The appellant then appealed to this Court by special leave, contending that the 1948 Rent Control Order was repugnant to the Transfer of Property Act of 1882, which had become applicable in the State of Mysore through the Part B States (Laws) Act of 1951, effective 1 April 1951, and therefore could not affect the parties’ rights on the date of the delivery order, either on 9 July 1951 when the order was made or on 22 July 1951 when possession was actually delivered. The Court held that the Transfer of Property Act only became operative in Mysore when it was extended by a notification dated 12 September 1951 under section 3 of that Act, taking effect from 1 October 1951; consequently, the Mysore House Rent and Accommodation Control Order of 1948 remained in force at the relevant time.

The Court held that the Mysore House Rent and Accommodation Control Order of 1948 was not repealed by the Part B States (Laws) Act, 1951. The Part B States (Laws) Act, 1951, came into force on April 1, 1951, and the rent control order continued to be in effect when possession was delivered. Consequently, the order was an existing law that was saved by Article 372 of the Constitution and remained unaffected by Article 254. Because the order persisted, the Court found that any question of repugnancy with the Transfer of Property Act, 1882, did not arise in the present case. The Court referred to the decision in M/s. Tilakram Rambaksh v. Bank of Patiala, AIR 1959 Punjab 440, for support. Section 47 of the Code of Civil Procedure was held applicable because the issue concerned whether the decree had been fully satisfied. When a decree is fully satisfied, the court becomes functus officio, and the matter relates to execution, satisfaction and discharge of the decree. The Court cited Ramanna v. Nallaparaju, AIR 1956 S.C. 87, and J. Marret v. Mohammad Shirazi and Sons, AIR 1930 P.C. 86, as authorities. The Court explained that where a court is unaware of a statutory restriction prohibiting execution of a decree, the court may not enforce it. If the court nevertheless passes an ejectment decree against a tenant, any possession obtained under an ex parte order issued for execution can be set aside under Section 151 of the Code of Civil Procedure. The decision in K. Muhammad Sikri Sahib v. Madhava Kurup, AIR 1949 Mad. 809, was referred to for this principle. The Court rejected the appellant’s reliance on the doctrines of res judicata and estoppel, holding that those contentions had no force. Sections 9(1) and 16 of the House Rent Control Order imposed restrictions on the power of the court to execute a decree, and ignoring those restrictions constituted more than a mere error in jurisdiction.

The appeal was filed under civil appellate jurisdiction as Civil Appeal No. 302 of 1955, seeking special leave from the Mysore High Court judgment dated April 3, 1954, in Regular Appeal No. 195 of 1951‑52. Counsel for the appellants comprised S.A. Gopala Rao and B.R.L. Iyengar, while counsel for the respondent included Mirle N. Lakshminaranappa, P. Ram Reddy, R. Thiagarajan and C.V.L. Narayan. The judgment was delivered on September 8, 1960 by Justice Kapur, who observed that the appeal possessed little substantive merit and therefore should be dismissed. The Court identified the appellants as the decree‑holders and the respondent as the judgment‑debtor. The factual background began on February 3, 1941, when the father of the appellants executed a registered deed leasing the disputed house to the respondent for ten years. The deed also provided a renewable option for successive periods for as long as the respondent desired. The respondent used the leased premises for operating his hotel. The father of the appellants died on January 25, 1945. Subsequently, on December 21, 1945, the appellants instituted a suit seeking a declaration that the 1941 lease deed was not executed for legal necessity or family benefit. They also claimed that the alienation was not binding on them and that the renewal option under the lease was void and unenforceable.

In the suit the appellants also sought an order for delivery of possession of the premises and a monetary decree for past mesne profits amounting to Rs 2,655, together with future mesne profits of Rs 250 per month calculated from 1 December 1945. The respondent filed a written statement on 11 March 1946 and later a supplementary written statement on 26 November 1946 in which he contested the court’s jurisdiction by invoking the Mysore House Rent Control Order of 1945. The trial judge accepted the respondent’s preliminary objection and dismissed the suit. On appeal the High Court set aside that decree, holding that the trial court had misconstrued the nature and scope of the suit; it observed that the suit was not based on a landlord‑tenant relationship and therefore section 8(1) of the Mysore House Rent Control Order was inapplicable, and it remanded the matter for a fresh trial. After the retrial, on 23 August 1948 the trial court decreed in favour of the appellants. The trial court found that the lease created a binding tenancy for the initial ten‑year period beginning 1 May 1941 because it was founded on legal necessity, but it held that the option to renew was void and unenforceable due to uncertainty. Consequently, the court issued a decree for possession to take effect at the end of the ten‑year term, that is, on 1 May 1951. The High Court affirmed that decree on 22 August 1950. On 9 July 1951 the appellants obtained execution of the decree, and on 22 July 1951 possession was delivered to them. The delivery order was made without notice to the respondent and in his absence; the respondent later appeared at the site after the majority of the property had already been handed over to the appellants. On 13 August 1951 the respondent filed an application in the Executing Court, the District Judge, invoking sections 47, 144 and 151 of the Code of Civil Procedure, seeking to set aside the ex parte delivery order and to have possession of the house restored to him, or alternatively to obtain an order directing the appellants to provide facilities for the removal of the moveable goods and articles listed in his petition. The appellants responded that the respondent’s application was not maintainable. The District Judge, on 14 November 1951, accepted that submission and dismissed the application. The appellants then appealed to the High Court, which reversed the Executing Court’s order and directed the appellants to return possession of the disputed house, together with the moveables that were present at the time of the respondent’s eviction. The High Court held that the Executing Court lacked jurisdiction to order the respondent’s eviction because the Mysore House Rent and Accommodation Control Order of 1948, which was in force at the time of the eviction, governed the matter. After the High Court refused to issue a certificate under article 133, the appellants obtained special leave to appeal from this Court.

In this case, the Court noted that the matter reached it on January 12, 1955, after a series of proceedings in the lower courts. The central issue for decision concerned the extent to which the provisions of two successive House Rent Control Orders – the Order of 1945 and the Order of 1948 – applied to the suit and the subsequent execution proceedings. The Court explained that the Mysore House Rent Control Order of 1945 had become operative on November 6, 1945. Section 8(1) of that Order imposed a limitation on the eviction of tenants. The relevant portion of the provision read as follows: “Section 8 (1) A tenant in possession of a house shall not be evicted therefrom, whether in execution of a decree or otherwise before or after the termination of the tenancy, except in accordance with the provisions of this clause; (2) A landlord wishing to evict a tenant in possession shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied ….” This Order was later superseded by the Mysore Rent and Accommodation Control Order of 1948, which came into force on July 1, 1948. The Court identified sections 9 and 16 of the 1948 Order as the provisions relevant to the present appeal. Section 9 provided: “(1) A tenant in possession of a house shall not be evicted therefrom whether in execution of a decree or otherwise except in accordance with the provisions of this clause; (2) A landlord who seeks to evict a tenant in possession shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a suitable opportunity of showing cause against such application, is satisfied ….” The Order further stipulated that a landlord could not institute a suit for eviction before a competent civil court unless a certificate to that effect was obtained from the Controller, and that no decree for eviction could be executed without such a certificate. The appellants, before the High Court and again before the Supreme Court, argued that the Mysore House Rent Control Order of 1948 conflicted with the provisions of the Transfer of Property Act (Act IV of 1882) as it had been brought into force in the State of Mysore by the Part B States (Laws) Act, 1951 (Act III of 1951). The Part B States (Laws) Act had been enacted on February 22, 1951, and became effective on April 1, 1951, which was designated as the appointed day. On that basis, the appellants contended that the House Rent Control Order could not affect the parties’ rights on the date when the Executing Court issued the order for delivery of possession to the appellants on July 9, 1951, or on the date when possession was actually delivered on July 22, 1951. The Court indicated that to evaluate the force of this contention, it was necessary to examine the provisions of the Part B States (Laws) Act and to determine how and when, as a consequence of that Act, the Transfer of Property Act became applicable in Mysore.

The Court explained that the Transfer of Property Act had become effective and operative in the State of Mysore after the enactment of the Part B States (Laws) Act. Section 3 of the Transfer of Property Act dealt specifically with the extension and amendment of certain Acts and Ordinances. Under that provision, the Acts and Ordinances listed in the Schedule were amended and brought into force as prescribed. As a result, the fourth paragraph of section 1, which originally referred to “Bombay, Punjab or Delhi,” was altered by substituting the words “that the said States.” Consequently, the effect of the Part B States (Laws) Act was that, for the purposes of the Transfer of Property Act, Mysore was placed on the same footing as the States of Bombay, Punjab and Delhi. By means of Notification No. 2676‑Cts. 46‑51‑5 dated 12 September 1951, the Transfer of Property Act was formally extended to Mysore with effect from 1 October 1951. In view of that extension, the existing state laws governing leases, including the Mysore House Rent Control Order of 1948, continued to remain in force and applicable to pending cases until such order was eventually repealed by the Mysore Rent Control Act of 1951, which obtained the President’s assent on 16 August 1951. The Court therefore rejected the argument that, on the basis of a supposed repugnancy, the 1948 House Rent Control Order had been repealed as of 1 April 1951. That contention was deemed unsound because the Order was an existing law saved by Article 372 of the Constitution and therefore remained unaffected by Article 254. The Court cited the Punjab High Court’s decision in M/s Tilakram Rambaksh v. Bank of Patiala, wherein the effect of the Part B States (Laws) Act on the application of the Transfer of Property Act to PEPSU was discussed. The Punjab Court observed that the Central Act III of 1951 merely empowered Part B States to extend the Act to any part of their territory by notification, and that, in fact, neither PEPSU nor Punjab had ever effected such a notification, so the Transfer of Property Act was not in force there; consequently, further examination of the repugnancy argument was unnecessary. The Court noted that, although the question of repugnancy had been raised before the High Court during the appeal, the true effect of section 3 of the Part B States (Laws) Act and the relevant notification had not been placed before the learned judges, and the High Court had merely discussed the matter in its order refusing a certificate under Article 133(1) of the Constitution. Accordingly, the Court held that the repugnancy argument was wholly inefficacious in the present appeal. The Court also considered the contention that section 47 of the Code of Civil Procedure was inapplicable to the proceedings from which the appeal arose. That contention was found to be equally unsubstantial, because the issue of whether the decree had been fully satisfied, rendering the court functus officio, related to matters of execution, satisfaction and discharge of the decree. The Court referred to its earlier decision in Ramanna v. Nallaparaju, which held that “When a”

In this case the Court explained that when a sale carried out in execution of a decree is challenged on the ground that the sale is not authorised by the terms of the decree, the proper mode of raising that challenge is by filing an application under section 47 of the Code of Civil Procedure, and not by instituting a separate suit. This principle was set out in the decision reported in A.I.R. 1959‑Pb. 440, 447 and again in A.I.R. 1956‑SC. 87, 91. The Court also referred to the earlier case of J. Marret v. Mohammad Shirazi & Sons, where the facts showed that the Executing Court had issued an order that required payment of a certain fund to the decree‑holder in a manner contrary to the decree. Another authority cited was K. Mohammad Sikri Sahib v. Madhava Kurup, a Madras High Court decision reported in A.I.R. 1949‑Mad. 809. In that case the Executing Court, unaware of an amendment to the Rent Restriction Act that prohibited execution of the decree, passed an ejectment order against a tenant. The High Court held that the Executing Court was not empowered to execute the decree and that any possession obtained under an ex parte order issued in execution of the prohibited decree could be set aside under section 151 of the Code of Civil Procedure. The Court observed that the same prohibition applied to the present dispute and that the combined operation of sections 47 and 151 would be sufficient to sustain the order of redelivery made in favour of the respondent.

The appellants also raised the doctrines of res judicata, waiver and estoppel as defenses to the present claim. Their argument of res judicata was based on a plea taken by the respondent in his written statement dated 11 March 1946, in which the respondent contended that the civil court lacked jurisdiction to order eviction because of the provisions of the House Rent Control Order, 1945. The appellants replied that, considering the nature of the suit and the consequential remedy that they were seeking, the question of jurisdiction was not open to the respondent. Accordingly, the trial court framed a new issue: whether the court had jurisdiction to try the suit in view of the House Rent Control Order. That issue was decided against the respondent, and a decree in favour of the appellants was pronounced on 23 August 1945. The appellants then argued that the subsequent plea that the decree could not be executed was barred by the principle of res judicata, on the ground that the earlier judgment had finally decided the question of jurisdiction and thus precluded any further dispute on the executability of the decree.

The Court rejected the contention that res judicata applied. It held that the restriction imposed by the House Rent Control Order dealt not with the power to pass the decree but with the power to execute it. Consequently, an objection to the executability of the decree could be raised only at the time of execution, and could not be invoked retrospectively through the doctrine of res judicata. In the present matter the order for delivery issued by the Executing Court was made without giving notice to the respondent, thereby depriving the respondent of the opportunity to raise the objection at the appropriate stage. Because the objection could not have been raised earlier, the doctrine of res judicata was inapplicable and the Court dismissed the appellants’ plea on that ground. The Court also examined the arguments of waiver and estoppel and found them to be unsupported by the facts and by the statutory framework, and therefore rejected those pleas as well.

The Court observed that the argument founded on waiver and estoppel was without legal effect. That argument had been based on a letter which the respondent’s counsel had written in reply to a request that arrangements be made to place the appellants in possession of the premises. In the letter the counsel stated that his client was making the necessary arrangements and that, as soon as it was possible, the client would hand over possession to the appellants. The Court described this as a very weak basis for sustaining a claim of waiver or estoppel. It found that there was no conduct on the part of the respondent that had induced the appellants to change their position or that had in any manner affected the appellants’ rights. The plea that the decree could not be executed was based on statutory provisions, and the Court held that a claim rooted in statute could not be barred by estoppel. Accordingly, the ground raised by the appellants was unsound and had to be rejected. The appellants further contended that disregarding sections 9(1) and 16 of the 1948 House Rent Control Order was merely a mistake in the exercise of jurisdiction. The Court found this contention unconvincing because those sections function as a limitation on the executability of the decree, not simply as an error of jurisdiction. In the present matter the two cited sections restricted the court’s power to enforce the decree, and therefore that argument also had to be rejected. As a result, the appeal was dismissed, and costs were awarded against the appellants. The appeal was dismissed.