(1.) THIS is judgment-debtor's S. A. in execution proceedings under Section 40, Bikaner Civil P. C. A decree was passed against the J. D. for Rs. 23-9-6 on account of rent & for eviction from a house occupied by the J. D. as a tenant of the decree-holder. The decree was passed by the City Munsif of Bikaner on 10-8-1948, & because there was no appeal therefrom, it had become final. The decree holder applied for execution of the decree on 15-10-1948. On 26-8-1949 i. e. , more than five months alter the execution appln. was male & after taking several adjournments for vacating the house in question, the J. D. made an appln. that he was willing & ready to pay the decretal amount of rent & (not the amount of rent that had become due from him this date) that he may be allowed to deposit the same in Ct. for payment to the D. H. & that be may not be made to vacate the house & the execution appln. be struck of the file of the Ct. THIS request was not granted by the executing original Ct. which dismissed the same on 19-4-1949 & ordered that the J D. be evicted through the Ct. The J. D. went up in appeal to the Dist. J. from this order of the City Munsif. The Dist. J. also dismissed his appeal on 25-8- 1949. In the Ct. of the Dist, J. also the J. D. applied that he was willing & ready to deposit in Ct. the amount of rent decreed against him for payment to the D. H. & that he may not be made to vacate the house vide his appln. dated 24-5-1949 on the file of the Dist. J. at No. 10. The J. D. has now come in S. A. to this Ct. with the same prayer as in the lower Cts.
(2.) ON behalf of the appct. it has been argued by his counsel that under the Prevention of Eviction Order, 1942, promulgated by notfn. No. 33 of 26-6-1942, published in the Bikaner Rajputra of 27-6-1942 read with this principle embodied in Section 114, T. P. Act, the applt. cannot be ordered to vacate the house and in support of the argument two published judgments of the Bikaner H. C. printed in 17 Bikaner L. R. Part. III on p. 59 & 18 Bikaner L. R. Part II on p. 16 & judgment of the same Ct. dated 10-7-1944, a copy of which has bean filed by the applt. on the records of Ct. of the Dist. J. have been cited. ON the other hand, it has been argued on behalf of the resp. that this Ct. is hearing the appeal on the execution side, that this Ct. has got to give effect to the terms of the decree which cannot be made a nullity & a judgment of the Bikaner h C. dated 15-4-1948, has been cited & a copy filed on the records of the Ct. of the Dist. J. It may be pointed out that the judgments that have been cited are not binding on this Ct. They, however, are entitled to respect just as judgments of any other independent H. C. The relevant provisions of the Prevention of Eviction Order, 1942 are as follows : " 3. No notice of eviction served by a landlord on his tenant requiring him to vacate his house on or after the 80th day of June shall be valid & no action would be open under it either in Ct. or otherwise. Provided that nothing herein contained shall be a bar to eviction for non-payment of rent or for any material breach of the terms of the tenancy. "