- (1.) THIS revision has been preferred against the judgment and decree of the Additional Commissioner-II, Jaipur dated 16-12-60, by which he has confirmed the order of ejectment of the applicant from, the disputed land under sec. 174 of the Rajasthan Tenancy Act 1955. We have heard the learned counsel for the parties and examined the record also. We have no hesitation in observing, at the very outset, that this case has been dealt with in a most mis-conceived manner by both the lower courts.
(2.) IT appears that a decree for rent had been passed in favour of the opposite party against the applicant by Tehsil Bharatpur on 24-12-54. The copy of the decree and the latest position about it has not been put on the record either by the opposite party or by the court. We are not in a position to say for what amount, and for what arrears and for which years this decree has been passed. The opposite party has stated in his application presented on 30. 3. 59 that a decree for arrears of Rs. 344/14/- had been passed in his favour. The applicant has denied and stated that the matter was still under appeal with the Additional Commissioner. The learned counsel appearing for the opposite party has stated that present proceeding has been started under sec. 174 (2) of the Rajasthan Tenancy Act 1955 (hereinafter referred to as the Act ). A plain reading of this sub-section (2) of this section would go to show that an application can be made to the court which passed the decree for the issue of a no;ice to the tenant for payment of the amount due under the decree for arrears of rent and for his ejectment in case of default. But it is to be done subject to proviso to sub-sec. (1 ). The proviso reads that no tenant shall be liable to ejectment unless recourse has been had to all other modes of execution and the decree has not been completely satisfied by any such mode within two years from the date of such decree". Sub-sec. (1) reads that a decree for arrears of rent passed in a suit under Chapter X of the Act may be executed, in addition to any other mode of execution permissible under the law, by ejectment of the tenant from his holding. These provisions very clearly contemplate that an application for ejectment can be submitted in the execution proceedings themselves and not independently of them as has been done in the present case. Besides, such an ejectment can to sought only for the satisfaction of the decree for arrears of rent passed in a suit under Chapter X of the Act and not otherwise. We find from the perusal of the record of the learned trial court that original proceedings for execution of the decree are not there on record nor has it been made in any way clear by the applicant by producing a certificate as to at what stage the proceedings were and what steps he had already taken for the decree. In view of the proviso to sub-sec. (1) referred to above, no ejectment can be ordered unless all other modes of execution of the decree had been tried without success "within two years from the date of such decree". The learned trial court has failed to appreciate this clear provision of law and has ordered the ejectment only on the ground that the applicant contended that he had already paid the amount of the decree; but have had not proved it to its satisfaction. In appeal also the learned Additional Commissioner has totally failed to appreciate the requirements of this provision. He has contented himself only with the observation that the applicant had failed to point out which of the modes of execution had not been tried and exhausted, and ordered the ejectment of the applicant only with an observation that the limit of two years is to be counted not from the date of the exhausting of the last mode of execution but of the date of the decree itself. IT is not the case that is required to be proved in law for any action under sub-sec. (2 ). What has to be proved is that "within two years from the date of such decree" and we emphasise the word "within", all other modes of execution for the satisfaction of the decree must have been exhausted without any success. There is absolutely nothing either in the application of the opposite party itself, nor is there any evidence to show that this requirement of the law laid down in the proviso to sub-sec. (1), had been fulfilled. Besides, both the learned lower courts have also failed to take notice that it was only for the decrees "passed in a suit "under chapter X of the Act" that could be executed by ejectment under sec. 174 of the Act. If the decree was dated 24-12-54, as has been stated by the opposite party himself in his application, obviously it was not a decree under chapter X of the Act, which itself came into force on 15. 10. 55. Under the circumstances the learned lower courts should have first established how a decree passed on 24-12-54 could be treated to be a decree for the arrears of rent "passed in a suit under Chapter X of the Act". We have tried to ask the learned counsel for the opposite party to explain to us also how the decree, the execution whereof was being sought, could be so treated. He has not even been able to show under what relevant law the decree had been passed and what its position after the enforcement of the Act was. Nor is there anything on the record to enable us to come to the conclusion how the decree, dated 24-12-54, could be treated to be a decree passed "under Chapter X of the Act. " Thus it would be evident beyond doubt that both the learned lower courts have exercised the jurisdiction which did not vest in them. They could have jurisdiction to pass any order under sec. 174 of the Act only when the requirement of sub-sec. (1) that the decree was in a suit under Chapter X of the Act" and that, as laid down in the proviso thereto, it had remained unsatisfied even though recourse had been made to all other modes of execution "within two years" from the date of the decree itself. As discussed above both the things have not been established and therefore the orders of both the learned lower courts deserve to be set aside as being without jurisdiction. Strangely enough the learned Additional Commissioner has committed a still more grave illegality in ignoring the clear position of the proviso to sec. 5 (5) (d) of the Rajas-than Zamindari and Biswedari Abolition Act 1959. The land was comprised in an estate admittedly; which had been vested in the State at the time of the passing of the order of ejectment by the teamed trial court itself on 14. 9. 60. The point has been specifically argued before him that after the vesting of the estate, the opposite party had no locus standi to get the decree executed by ejectment. He has over-ruled this contention simply by taking recourse to sec. 174 of the Act, which, as stated above by us, does not at all apply to this case. Even if the! learned Additional Commissioner had taken it to be applying to the present case, he should have atleast taken into consideration the provision of the proviso to sec. 5 (5) (d) of the Rajasthan Zamindari and Biswedari Abolition Act 1959, which while allowing the Zamindar or a Biswedar to recover any sum legally due to him by virtue of his right, title or interest in the estate in respect of any period prior to the date of vesting, very clearly lays down that no such decree or any order for ejectment in default of payment of an arrear of rent shall be executed by ejectment of the judgment-debtor from his holding. The ejectment of the applicant was fully protected by this proviso. To conclude : we accept this revision, set aside the judgment and order of both the learned lower courts and direct that the application for ejectment of the applicant preferred by the opposite party to Tehsildar Bharatpur on 30. 3. 59, shall stand dismissed. .;