# BALAK SINGH v. WAQF ALEE AILAH KAYAM KARDA AHMAD UILAll KllANSAHEB

- **Citation:** [1970] 1 S.C.R. 46
- **Court:** Supreme Court of India
- **Decided:** 1969-03-20
- **Case number:** CivIL APPELLATE ]Ull!SDICTION : Civil Appeal No. 706 of 1966
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/balak-singh-v-waqf-alee-ailah-kayam-karda-ahmad-uilall-kllansaheb-4815
- **Pages:** 5

## Headnote

BALAK SINGH
......
v.
WAQF ALEE AILAH KAYAM KARDA AHMAD UILAll
KllANSAHEB
March 20, 1969
[S. M. Soou, R. S. BACHAWAT AND K. S. liBGDE, 11.]
U.P. Tenancy Act 1939, a. 168 and 271(2)--0rder under 1. 168
whether an order in execution of a decree-Whether appeakzb/e to District
l"'11e under 1. 271 (2).
1be appellant wu tho tenant of the respondent Wald. The respondent
obtained a decree for arrears of rent agaimt the appellant but failed to
cucute it by attachment of crops aa they had already been removed by
the appeiJaoL Tho respondent then made an application under a. 168 of
the OJ>. Tenancy Act, 1939 prayina that the amount of tho decree be
aot paid under that section or, in default of payment, the appellant may be
clitpoHess"".
Objections were raiJed by tho appellant to this application
but they were ultimately rejected by the Assistant Collector. The District
Judge lillowed the appeal against the .Assistant Collector's order. lo further
appeal by the respondent, the High Coun held that procecdiop
under
s. 168 were proceedings in the origioa) suit and not in execution and thuefore no appeal lay to the District Jucfse under s. 271(2) of the Act. Against
the High Court's decision, the appellant, by special leave, came to this
Court.
HELD : An examination of the scheme of a. 168 shows that an applicaiion under that aection is a step in the execution. discharge, or satisfaction
of the decree. The fact that the application la to the court which pused the
decree does not necessarily show that the order passed on the application
la not one rclatin11 to the execution, discharge or satisfaction of the decree,
for under s. 38 of the Civil Procedure Code a decree may be executed
either by the Coun which paS$ed it, or by the coun to which it is sent for
execution. [SOA-BJ
B
c
D
While s. 168 doels with a decree for arrears of root against an ex.proprlelary, an occupancy or hereditary tenant, s. 170 of the Act deals with
a clecree puaed for am.n of rent aaainst a non-<lCCUpancy tenant A
similar application la provided tor in s. 170 and the legislature clearly con.. r
templata that this is a mode of encution for it llMI tho wordl "tho landholder may, in addition to- any Olher mode of m:ecution, apply to Ibo court
wblch paaeed the decne for lalUo of a notice." A mode limilar to tho
mode or proceedins under 1. 168 ii thus treated u a mode of execution.
(501)..B]
1be HlJb Court therefore orrecl in holdin& that the appeal to the District 1udae wu Incompetent on tho around that tho order under 1. 168 wu
not Oll8 rolatlni to tho Oltecution, Cllscbarp or satisfaction of tho decree.
G
[50 D-BJ
CivIL APPELLATE ]Ull!SDICTION : Civil Appeal No. 706 of
1966.
Appeal by special leave from the judgment and decree dated
January 7, 1965 of the Allahabad High Court mF.A.F.O. No. 254
of 1960.
8
S. P. Sinhp, I. P. Goyal and S. P. Singh, for the appellllOlt.
C. B. Agarwqla and S. Shaukat Hussain, for the respondent.
•
BALAK SINGH V. AHMAD ULLAH (Sikri, /.)
47
A

## Text

BALAK SINGH
......
v.
WAQF ALEE AILAH KAYAM KARDA AHMAD UILAll
KllANSAHEB
March 20, 1969
[S. M. Soou, R. S. BACHAWAT AND K. S. liBGDE, 11.]
U.P. Tenancy Act 1939, a. 168 and 271(2)--0rder under 1. 168
whether an order in execution of a decree-Whether appeakzb/e to District
l"'11e under 1. 271 (2).
1be appellant wu tho tenant of the respondent Wald. The respondent
obtained a decree for arrears of rent agaimt the appellant but failed to
cucute it by attachment of crops aa they had already been removed by
the appeiJaoL Tho respondent then made an application under a. 168 of
the OJ>. Tenancy Act, 1939 prayina that the amount of tho decree be
aot paid under that section or, in default of payment, the appellant may be
clitpoHess"".
Objections were raiJed by tho appellant to this application
but they were ultimately rejected by the Assistant Collector. The District
Judge lillowed the appeal against the .Assistant Collector's order. lo further
appeal by the respondent, the High Coun held that procecdiop
under
s. 168 were proceedings in the origioa) suit and not in execution and thuefore no appeal lay to the District Jucfse under s. 271(2) of the Act. Against
the High Court's decision, the appellant, by special leave, came to this
Court.
HELD : An examination of the scheme of a. 168 shows that an applicaiion under that aection is a step in the execution. discharge, or satisfaction
of the decree. The fact that the application la to the court which pused the
decree does not necessarily show that the order passed on the application
la not one rclatin11 to the execution, discharge or satisfaction of the decree,
for under s. 38 of the Civil Procedure Code a decree may be executed
either by the Coun which paS$ed it, or by the coun to which it is sent for
execution. [SOA-BJ
B
c
D
While s. 168 doels with a decree for arrears of root against an ex.proprlelary, an occupancy or hereditary tenant, s. 170 of the Act deals with
a clecree puaed for am.n of rent aaainst a non-<lCCUpancy tenant A
similar application la provided tor in s. 170 and the legislature clearly con.. r
templata that this is a mode of encution for it llMI tho wordl "tho landholder may, in addition to- any Olher mode of m:ecution, apply to Ibo court
wblch paaeed the decne for lalUo of a notice." A mode limilar to tho
mode or proceedins under 1. 168 ii thus treated u a mode of execution.
(501)..B]
1be HlJb Court therefore orrecl in holdin& that the appeal to the District 1udae wu Incompetent on tho around that tho order under 1. 168 wu
not Oll8 rolatlni to tho Oltecution, Cllscbarp or satisfaction of tho decree.
G
[50 D-BJ
CivIL APPELLATE ]Ull!SDICTION : Civil Appeal No. 706 of
1966.
Appeal by special leave from the judgment and decree dated
January 7, 1965 of the Allahabad High Court mF.A.F.O. No. 254
of 1960.
8
S. P. Sinhp, I. P. Goyal and S. P. Singh, for the appellllOlt.
C. B. Agarwqla and S. Shaukat Hussain, for the respondent.
•
BALAK SINGH V. AHMAD ULLAH (Sikri, /.)
47
A
The Judgment of the Court was delivered by
Sikri, J. The only question involved in this appeal by special
leave is whether an appeal lies against an crder passed under s. 168
of the U.P. Tenancy Act, 1939, hereinafter referred to as the Act.
Before we deal this point it _is necessary to give a. few facts.
B
tlalak Singh, appellant before us, was a tenant of the respondent
Waqf. The respondent had obtained a decree on May 17, 1956, for
Rs. 752 against Balak Singh for arrears of rent. The respondent
tried to execute the decree by attachment of crops, but Balak Singh
had apparently removed the crops.
Thereupon the respondent,
through one Reazuddin, claiming to be the Mutawalli of the resC
pondent Waqf, applied under s. 168 of the Act, praying that the
amount of the decree be got paid under s. 168 and in default of
payment of the decretal amount Balak Singh may be dispossessed.
This application was filed on July 4, 1957. On April 3, 1958,
notice was issued under s. 168 for May 2, 1958. On the latter date
Parwana Dakhal (Warrant of Possession) in favour of the decree
0
holder was issued, and it was directed that the file be put up on
June 13, 1958. On May 30, .1958, Balak Singh put in a petition
raising various objections, one of them being that no notice of ·
the proceedings taken under s. 168 had been served on him. He
further contended that l\.eazuddin had no right to file the application under s. 168. On July 12, 1958, the Assistant Collector, 1st
Class, cancelled the order dated May 2, 19 5 8, arid directed that
E
fresh notice be issued under s. 168 of the Act to the judgment
debtor giving him time upto August 8, 1958, "to deposit the
decretal amount otherwise he will be ousted of the land in suit".
He also directed that the decree holder should file evidence of the
succession of Reazuddin to Abdul Latif who was the previous
Mutawalli.
F
On August 8, 1958, Balak Singh raised some more objections,
including the objection that he should be granted 120 days time
for payment of the decretal amount in execution as provided in
s. 168. On August 8, 1958, the Assistant Collector held that
he had already given a long time to pay the due and 110 question
of granting further time arose. . He fu.rther held ~at Reazuddin
G . had filed papers to prove that he had a right to co tinue the proceedings. The Assistant Collector confirmed the o der _previously
passed regarding delivery of possession to the decree holder. He
noted that possession had already been delivered.
H
Against this order Balak Singh filed an appeal to the District
Judge. The District Judge held that it had not been ·established
that Reazuddin was a legal representative or agent of the d~ree
holder and that, at any rate, no proper notice under s. 168 of the
Act had been served on Balak Singh and it was not right for the
48
SUPREME COURT REPORTS
(1970] I S.C.R.
Court to have confirmed the previous order without complying
with the mandatory provisions of s. 168. He accordingly allowed
the appeal and sent the case back to the execution court with a
direction to readmit it and deal with it according to Jaw.
The respondent then filed an appeal to the High Court.
Mathur, J ., came to the conclusion that thr appeal to the District
Judge was incompetent as no appeal Jay against an order passed
under s. 168 of the Act. He was of the view that an order under
s. 168 was passed in the main suit and not in execution.
Section 168 of the Act reads thus :
"168. (I) When a decree for arrears of rent against
an ex-proprietary, an occupancy or hereditacy tenant
has not been completely satisfied within one year from
the date of such decree by any mode of execution other
than sale of holdings, the landholder may apply to the
court, whi~h passed the decree, for the issue of a notice
to the tenant for payment of the amount outstanding
and for his ejcctment in case of the default and the court
shall thereupon issue such notice.
(2) The notice shall require the tenant to appear
within thirty days of the service of the notice, and either
to show cause why he should not be ejected from the
holding, or to admit the claim and obtain leave to pay
the amount into the court within one hundred and
twenty days from the date of his appearance in the
court.
( 3) If the tenant does not a~
in accordance
with the terms of the notice, or havmg appeared either
does not show cause why he should not be ejected or
does not ask for leave to pay, the court shall immediately
order his ejectment from the "balding,
· ·
(4) H the tenant appears and obtains leave to pay,
then, unless within one hundred and twenty days from
the date of his appearance in the court, the tenant has
paid the amount or payment thereof has been certified
to the c6urt ~ accordance with Rule 2, Order XXI of
the Code of Civil Procedure, 1908, the court shall on
the 31st of May next following, order his ejectmcnt.
( S) The order of ejcctment shall be executed on or
after the first day of June next following the date of the
order. H withiil one month after the delivery of possession, the tenant deposits the decrctal amount, the cjectment order shall be cancelled and possession restored
forthwith to the tenant.
A
B
c
D
I'
G
R
A
LALAK SINGH v. AHMED ULLAH (Sikri, J.)
49
( 6) No extension of time for payment shall be
allowed:
Provided that ihe tenant shall be ejected only from
such portion of_the_holding ihe rent of which does not
exce
one-sixth of ihe decretal amount." ·
B
The leame cquhsel for the appellant contends that an appeal
lies under s. 271
of the Act, which reads as follows :
c
D
E
·"Ao appeal 'shall lie from an order mentioned in s~
tion 4 7 or section 104 or section 144 or in Order XLID,
Rule 1 of the Code of Civil Procedure, 1908, and roaqe
by an assistant collector of the first class or a collecto~.
Such appeal shall lie to the court, if any, having
jurisdiction under -section 265 of this Act to hear an
appeal from the <jecree in the suit, or in the case of an
application for eitecution; to the court having juris~
tion to near an appeal from. the decree which is being
executed."
The answer to the question depends on whether the order
under s. 168 of. the Act can be said to be an order relating to the
execution, discharge or satisfaction of the decree. It seems to us
that the order dated August 8, 1958, was an order relating to the
execution, discharge or satisfaction of the decree for rent, dated
May 17, 1956.
It will be noticed that sub-s. (I ) of s. 168 contemplates. the
decree holder having tried to execute the decree by other modes
of execution. If the decree has not been satisfied within one year of
th; date of the decree, the decree holder is entitled to apply to the
Court which passed the decree for the issue of the notice to the
tenant for payment of the amount outstanding and for ejectment
:r in case of default. · Once the conditions are satisfied the Court
had no option but ta issue a notice. The object of the application
is satisfaction of the ilecree; it may be satisfied by payment of the
. amount outstanding or failing that by ~ectment in case of default.
Under sub-s. (2) the tenant is entitled to apply and obtaiil leave
G
H
to pay the. amount in Court within 120 days from the date of
appearance in the Court. He is also entitled to show cause why
he should not be ejected. Under sub-s. ( 3) the Court is entitled
to immediately order his ejectment from the holding if the tenant
does not appear in accordance withl:he terms of notice or having
appeared either does ·not show cause why he should not be i:jected
or does not ask leave to pay. Under sub-s. ( 4) in default of payment or certification to the Court in accordance r. 20. XXI of
the Code of Civil Procedure, the Court is entitled to order his
ejectment on May 31, next following. Then sub-s. ( 5) provides
for the execution of the order of ejectment.
50
SUPREME CO~T REPORTS
[1970] I S.C.R.
It seems to us that the whole scheme of the section shows
A
that the application under s. 168 of the Act is a step in the execution, discharge or satisfaction of the decree. The learned counsel
for the respondent contends that the application is to the COllrt
which passed the decree. But this does not necessarily show that
the order passed on the application is not one relating to the
execution, discharge or satisfaction of the decree. As provided
8
in s. 38 of the Civil Procedure Code, "a decree may be executed
either by the Court which passed it, or by the Court to which it
is sent for execution. n
While s. 168 deals with a decree for arrears of rent against
an ex-proprietary, an occupancy or hereditary tenant, s. 170 of
the Act deals with a decree passed for arrears of rent against a
non-occupancy tenant A similar application is provided for in
s. 170 and the legislature clearly contemplates that this is a mode
of execution for it uses the words "~ landholder may, in addition
to any other mode of execution, apply to the Court which passed
c
the decree for issue of a notice".
A mode similar to the mode
or proceeding under s. 168 is thus treated as a mode of execution.
D
In the n;sult we hold that the High Court erred in holding that
lhe appeal to the District Judge was not competent. Various other
questions arise in the appeal to the High Court. In the circumstances we set aside the judgment and order passed by the High
Court and remit the case to it to dispose of it in accordance with
law. The appellant will have his costs of this appeal.
G.C.
Appeal allowed.
•