RABIA BIBI DEAD Vs. LIAKAT ALI

JUDGEMENT

(1.) -The facts giving rise to the present Civil Revisions are as follows : The original decree-holder had filed H.R.C. Case No. 56 of 1977 against the predecessor-in- interest of the present opposite parties. The said proceeding was decreed ex parte by the House Rent Controller, Sambalpur, and an order of eviction was passed. Before initiation of the execution proceeding for executing the order of eviction, the original judgment-debtor expired. Thereafter, the original decree-holder filed Execution Case No. 31 of 1989 in the Court of the Munsif Sambalpur, along with a petition seeking permission to execute the decree "against the heirs of the original judgment debtor. In the said execution proceeding, one of the heirs of the judgment-debtor, namely present opposite party No. 1(a), filed an objection under Section 47, Code of Civil Procedure, challenging the maintainability of the execution case, In the said objection, the following three contentions were raised- .

(2.) At the threshold, the question of maintainability of the Civil Revisions before the High Court has been raised by the counsel for the opposite parties. It has been contended that Since the defaulted amount relating to payment of rent was less than Rs. 1,00,000/- (one lakh) and the execution case was filed before the Munsif whose pecuniary jurisdiction does not exceed Rs. 5,000/-, the Civil Revisions cannot be filed before the High Court as the valuation must be taken to be less than Rs. 1,00,000/-. The House Rent Control proceeding itself had neither been valued, nor was required to be valued. Since no valuation had been given, the original petitioner while filing the "Civil Revisions in this Court had valued the same at Rs. 1,02,000/- As such it cannot be said that valuation of the Civil Revisions is less than Rs. l,00,000/-. The contention of the opposite parties to the effect that since the execution had been filed before the Munsif, the valuation must be taken to be less than Rs. 5,000/- is also baseless. The execution proceeding is required to be filed before the Munsif as statutorily provided in the House Rent Control Act. By no stretch of imagination, it can be said that in all such cases valuation of the execution proceeding must be taken to be less than Rs. 5,000. As already indicated, when the matter is not valued at all, or is not required to be valued, it would be open to the parties to give any valuation for the purpose of filing appeal or civil revision.

(3.) Coming to the main contention raised in these Civil Revisions, on a careful perusal of the relevant provisions, it is obvious that the view taken by the executing court cannot be accepted. Section 38 of the Code of Civil Procedure envisages that a decree may be executed either by the court which passed it, or by the court to which the decree is sent for execution. Under the scheme of the House Rent Control Act, though an order of eviction is, to be passed by the House Rent Controller under Section 15 of the said Act, such order is deemed to be a decree and executable as such in the Court of the Munsif. In view of such deeming provision, two alternative consequences must follow; either it must be taken that the Munsif is the court which passed the decree, or it is the court to which the decree has been sent for execution. If the Munsif is taken to be the court which passed the decree, it is axiomatic to hold that such Munsif has jurisdiction to get the decree executed against the legal representatives of the deceased judgment-debtor in accordance with Section 50(1), Code of Civil Procedure. If on the other hand, the Munsif is taken to be the court to which the order of eviction stands statutory transferred, in other words, if such Munsif is taken to be the transferee executing court, the provision contained in Section 42 of the Code is squarely applicable. Section 42(1) of the Code, inter alia, lays down that the court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. In fact, Section 42(2)(b) of the Code makes it further clear that such transferee executing Court has the power to execute the decree against the legal representatives of the deceased judgment-debtor under Section 50 of the Code. Thus, in either view of the matter, it must be taken that the Munsif had the jurisdiction to execute the order of eviction against the legal representatives of the deceased judgment-debtor. Since the Munsif has failed to exercise the jurisdiction vested in it, it is a fit case where the order passed by the Munsif is required to be quashed. The matter shall now go back to the Munsif, i.e., the executing court, for executing the order of eviction. Since the prpcess of execution which started in the year 1989 has been long delayed the matter should be disposed of by the Munsif expeditiously.