- (1.) THESE are two connected appeals. Second appeal No. 323 of 1946 has been filed against the decree passed by the lower Court in a suit for ejectment and for certain other reliefs, while the connected appeal,--execution of decree appeal No. 21 of 1947--has been filed against the order passed in execution proceedings dismissing an objection under Section 47, Civil P. C. , by the judgment-debtor.
(2.) LEARNED Counsel for the respondent raised a preliminary objection that the second appeal is incompetent. The trial Court had decreed the suit filed by the plaintiff but had directed the plaintiff to pay the costs incurred by defendant No. 2 and to pay in addition a sum of Rs. 25/- as compensatory costs. The defendants had submitted to the decree, but the plaintiff had filed an appeal against the portion of the decree directing him to pay costs and in addition compensatory costs. The appeal was allowed and the lower appellate Court set aside the order of the trial Court awarding costs and compensatory costs to defendant No. 2, against the plaintiff. The defendants have filed an appeal now really not against the order passed by the lower appellate Court but against the order passed by the trial Court decreeing the suit for ejectment. The appeal is clearly incompetent. The decree for ejectment passed by the trial Court had become final, and it cannot be challenged in second appeal when the defendants did not appeal to the lower appellate Court. This appeal, therefore, fails and is dismissed with costs.
(3.) AS regards the second execution of decree appeal, after the decree for ejectment was passed an ordinance -- (U. P. Ordinance No. III of 1946) -- was passed, Clause 7 of which is as follows: "no decree for the eviction of a tenant from any accommodation passed before the date of commencement of this Ordinance shall in so far as it relates to the eviction of such tenant, be executed against him as long as this Ordinance remains in force, except on any of the grounds mentioned in Section 3, provided that the tenant agrees to pay to the landlord 'reasonable annual rent' or the rent payable by him before the passing of the decree, whichever is higher. " This Ordinance has now been replaced by an Act -- The U. P. Control of Rent and Eviction Act-- (U. P. Act No. 3 of 1947), Section 14 of which is exactly in similar terms. When the decree-holder filed an application for execution of the decree and claimed ejectment of the defendant, an objection under Section 47, Civil P. C. , was filed on behalf of the judgment-debtor on 16-11-1946. The judgment-debtor relied on Clause 7 of the Ordinance and urged that in view of the provisions of that clause he was no longer liable to ejectment. The executing Court dismissed the objection and an appeal was filed against his order before the learned District judge who, however dismissed the appeal on 23-7-1947. The learned District Judge rejected all other contentions of the decree-holder but based his decision on one finding that the tenant was liable to ejectment for contravention of Clause 3 (d) of the Ordinance inasmuch as he had allowed a marriage party to stay in the premises for a period of two days. The learned Judge held that the judgment-debtor "had no business to allow a marriage party to stay in the house even if it was a question of couple of days", and he thought that this user was inconsistent with the purpose for which the accommodation had been rented to him. In the earlier part of the judgment the learned Judge came to the conclusion that the premises had been let out to the defendant for purpose of residence and for a school.;