# Ig6o Shanno Devi v. Mangal Sain Das Gupta ]

- **Citation:** [1961] 1 S.C.R. 591
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** Civil Appeal No. 302 of 1955
- **Bench:** B. P. Sinha, J. L. Kapur, P. B. Gajendra· Gadkar, K. SuBBA RAO, K. N. Wanchoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ig6o-shanno-devi-v-mangal-sain-das-gupta-2196
- **Pages:** 9

## Headnote

Rent Control-Restrictions agaiiist eviction of tenants-Decree
for possession of house-Delivery given in the absence of tenantExecuting Court ignoring restrictions-Legality-RepugnanceMysore House Rent and Accommodation Control Order, z948, ss. 9
and z6 and Transfer of Property Act, z882 (Act IV of z882),-
Code of Civil Proce~ure (Act V of z908) ss. 47, z5z.
The appellants in execution of a decree passed in their
favour for possession over a house obtained possession thereof
on July 22, r95r. The order for delivery of possession was made
without notice to and in the absence of the respondent. The
respondent made an application in the Executing Court under
ss. 47, 144 and r5r, Code of Civil Procedure for setting aside the
ex-parte or.}er of delivery and for redelivery of possession of the
house to him or in the alternative, for an order to the appellants
for giving facilities for removing the moveables from the house.
The Executing Court upheld the contention of the appellant that
76
Ig6o
Shanno Devi
v.
Mangal Sain
Das Gupta ].
1960
Septetnber _8.
R. JI. Palankar
6- Otht1s
v.
C. G .. '·iastry
5!l2
SUPRE)IE COURT REPORTS
[1961 J
the respondent's application was not maintainable. On appeal
by the respondent the High Court held that the Executing Court
had no jnrisdic!ton to order the eviction of the respondent
because of the provisions of the Mysore !louse
J<ent
and
Accommodation Control Order, 1948, which was in operation on
the date of eviction and under ss. 9 and 16 of which certain
restrictions were placed on the eviction of tenants.
On appeal
to tlus Court by special leave, the appellants coutended, inter
alia; as they did in the High Court also, that the Mysore House
Henl Control Order of 1948 was repugnant to the provisions of
the Transfer of Property Act, 1882 (IV of 1882), which became
applicable in the State of )fysore by Part B States (Laws) Act,
1951 (Act III of 1951), which came into force on April l, 1951;
and therefore the House Control Order could not operate on the
rights of the parties on the day when the Executing Court made
the order for delivery of possession to the appellants, i.e., July
9, 1951, or when delivery was actually given i.e., on July 22,
1951.
Held, that the Transfer o! Property Act came into force
only when it was extended by notification dated September 12,
1951, under s. 3 of that Act, i.e., from O<:tober 1, 1951, and
therefore the ~lysore House Rent and Accommodation Control
Order, 1948, was not repealed as from April l, 1951, when the
Part B States (Laws) Act, 1951, came into force and was in force
when the possession was delivered. It was then an existing law
which was saved by Art. 372 of the Constitution and remained
unaffected by Art. 254, and the question of repugnancy to the
Transfer of Property Act (Act l V of 1882) did not arise in this
case.
Mjs. Tilakram Rambaksh v. Hcm/1 of Patiala, A.LR. 1959
Punj. 440, considered.
Section 47 of the Code.of Civil Procedure was applicable to
the proceeding out of which this appeal has arisen because the
question whether the decree was completely satisfi<'d and therefore the court becaruc functus officio was a
n1att~r relating to
execution, satisfaction and discharge of the decr'ee.
Ramanna v. Nallaparaju, A. I. R 1<156 S. C. 87 an<l ]. Marrct
v. Mohammad Sl11rozi and Sons, A.I.I<. 1930 P. C. 86, considered.
\Vherc the court was not aware of the st:ttutory. restriction
by which the execution of a decree v..·as prohibited and passed an
ejectment decree against a tenant the r~xecuting Court could not
execute the decree and any possession gi\•en under an ex parte
order passed in execution of such a decree could be set aside
under s. 151 of the Code of Civil Procedure.
K. Muhammad Sikri Sahib v. Madhava J(un•p, A.LR. 1949
~lad, 809, considered.
The contentions of the appellant based on the ground of
res judicata and estoppel were without any force.
Sections 9(1)
and 16 of the House J<ent Control Order placed restrictions on
' I
1 S.C.R. SUPREME COURT RE

## Text

I
1 S.C.R. SUPREME COURT REPORTS
591 '.
territory of India from at least August 15, 1947, till.the
26th November, 1949.
We have therefore come to the conclusion that the
High Court was right in sustaining Man gal Sain 's .
claim to be deemed a citizen of India under Art. 6 of
the Constitution and, in that view was also right in
allowing his appeal and ordering the dismissal of the
Election Petition.
In the view we have taken as regards Mangal Sain's
claim to citizenship under Art. 6 of the Constitution
it is not necessary to consider whether his claim
to citizenship under Art. 5 of the Constitution was
also good.
We therefore dismiss the appeal with costs.
Appeal dismissed.
B. V. PATANKAR AND OTHERS
v.
C. G. SASTRY
(B. P. SINHA, c. J., J. L. KAPUR, P. B. GAJENDRA·
GADKAR, K. SuBBA RAO and K. N. WANCHOO, JJ.)
Rent Control-Restrictions agaiiist eviction of tenants-Decree
for possession of house-Delivery given in the absence of tenantExecuting Court ignoring restrictions-Legality-RepugnanceMysore House Rent and Accommodation Control Order, z948, ss. 9
and z6 and Transfer of Property Act, z882 (Act IV of z882),-
Code of Civil Proce~ure (Act V of z908) ss. 47, z5z.
The appellants in execution of a decree passed in their
favour for possession over a house obtained possession thereof
on July 22, r95r. The order for delivery of possession was made
without notice to and in the absence of the respondent. The
respondent made an application in the Executing Court under
ss. 47, 144 and r5r, Code of Civil Procedure for setting aside the
ex-parte or.}er of delivery and for redelivery of possession of the
house to him or in the alternative, for an order to the appellants
for giving facilities for removing the moveables from the house.
The Executing Court upheld the contention of the appellant that
76
Ig6o
Shanno Devi
v.
Mangal Sain
Das Gupta ].
1960
Septetnber _8.
R. JI. Palankar
6- Otht1s
v.
C. G .. '·iastry
5!l2
SUPRE)IE COURT REPORTS
[1961 J
the respondent's application was not maintainable. On appeal
by the respondent the High Court held that the Executing Court
had no jnrisdic!ton to order the eviction of the respondent
because of the provisions of the Mysore !louse
J<ent
and
Accommodation Control Order, 1948, which was in operation on
the date of eviction and under ss. 9 and 16 of which certain
restrictions were placed on the eviction of tenants.
On appeal
to tlus Court by special leave, the appellants coutended, inter
alia; as they did in the High Court also, that the Mysore House
Henl Control Order of 1948 was repugnant to the provisions of
the Transfer of Property Act, 1882 (IV of 1882), which became
applicable in the State of )fysore by Part B States (Laws) Act,
1951 (Act III of 1951), which came into force on April l, 1951;
and therefore the House Control Order could not operate on the
rights of the parties on the day when the Executing Court made
the order for delivery of possession to the appellants, i.e., July
9, 1951, or when delivery was actually given i.e., on July 22,
1951.
Held, that the Transfer o! Property Act came into force
only when it was extended by notification dated September 12,
1951, under s. 3 of that Act, i.e., from O<:tober 1, 1951, and
therefore the ~lysore House Rent and Accommodation Control
Order, 1948, was not repealed as from April l, 1951, when the
Part B States (Laws) Act, 1951, came into force and was in force
when the possession was delivered. It was then an existing law
which was saved by Art. 372 of the Constitution and remained
unaffected by Art. 254, and the question of repugnancy to the
Transfer of Property Act (Act l V of 1882) did not arise in this
case.
Mjs. Tilakram Rambaksh v. Hcm/1 of Patiala, A.LR. 1959
Punj. 440, considered.
Section 47 of the Code.of Civil Procedure was applicable to
the proceeding out of which this appeal has arisen because the
question whether the decree was completely satisfi<'d and therefore the court becaruc functus officio was a
n1att~r relating to
execution, satisfaction and discharge of the decr'ee.
Ramanna v. Nallaparaju, A. I. R 1<156 S. C. 87 an<l ]. Marrct
v. Mohammad Sl11rozi and Sons, A.I.I<. 1930 P. C. 86, considered.
\Vherc the court was not aware of the st:ttutory. restriction
by which the execution of a decree v..·as prohibited and passed an
ejectment decree against a tenant the r~xecuting Court could not
execute the decree and any possession gi\•en under an ex parte
order passed in execution of such a decree could be set aside
under s. 151 of the Code of Civil Procedure.
K. Muhammad Sikri Sahib v. Madhava J(un•p, A.LR. 1949
~lad, 809, considered.
The contentions of the appellant based on the ground of
res judicata and estoppel were without any force.
Sections 9(1)
and 16 of the House J<ent Control Order placed restrictions on
' I
1 S.C.R. SUPREME COURT REPORTS
593
the power of the Court to execute the decree and ignoring them
. was not merely an error in the exercise of jurisdiction.
CIVIL
APPELLATE
JURISDICTION:
Civil Appeal
No. 302 of 1955.
Appeal by special leave from the judgment and
order dated April 3, 1954, of the Mysore High Court
in Regular Appeal No. 195 of 1951·52.
S. A. Gopala Rao and B. R. L. Iyengar, for the
appellants.
Mirle N. Lakshminaranappa, P. Ram Reddy, R.
Thiagarajan and 0. V. L. Narayan, for the respondent.
1960. September 8.
The Judgment of the Court
was delivered by
B. V. Patankar
& Others
v.
C. G. Sastry
KAPUR J.-This appeal has little substance and
Kapur J
must, therefore, be dismissed.
'.!'he appellants are the
decree-holders and the respondent is the judgment.
debtor. On February 3, .. 1941, by a registered deed
the father of the appellants leased to the respondent
the house in dispute for a period of 10 years with an
option of renewal for further periods for as long as the
respondent wanted. This house was used by the respondent for his hotel.
The father died on January 25, 1945. On December 21, 1945, the appellants filed a suit for a declaration that the deed of lease .of February 3, 194 l, executed by their father was not for legal necessity or for
the benefit of the family, tb at the alienation was not
binding on them and the option of renewal under the
lease was void and unenforceable on account of uncertainty. The appellants further prayed for delivery
of possession and for a decree for a sum of Rs. 2,655 as
past mesne profits and future mesne profits a.t Rs. 250
per mense.m as from December 1, 1945. The respondent filed his writ,ten statement on March 11, 1946, and
a.n additional written statement on November 26, 1946,
whereby he raised an objection to the jurisdiction of
the court by reason of the Mysore l!ouse Rent Control
Order of 1945. The trial judge upheld the preliminary
objection and dismissed the suit. On appeal, the High
Court set aside the decree on the ground that the
B. I'. J'ni(J 1·':11,
;. U.'l;c1s
v.
."(apur .f.
594
SCPRE~IE COURT REPORTS
(1961]
nature an<l seope of the suit had been misconceived by
the trial court and that it was not based on relationship of landlord and tenant and therefore s. 8(1) of
the :\lysore Hou so Rent Control Order was inapplicable and the case was remanded for retrial.
On August 23, 1948, the suit was decreed. The trial
court held that the lease was binding for the- first
period of ten years as from l\Iay I, 1941, as it was
supported by legal necessity ; but the option of rene:
.val was void and unenforceable for uncertainty and
therefore a decree for possession was passed to be
0pPra.tive on the expiry of ten years, i.e., May 1, 1951.
Un appeal the High Court confirmed that decree on
A '!gust 22, 1950.
Un July 9, 1951, the appellants took out execution
0f the decree and on July 22, 1951, possession was deliYered to them. The order for delivery was made without notice to and in the absence of the respondent. The
proceedings, "spot mahazar" that the respondent came
t<' the spot after delivery of the major portion of the
property in dispute had been delivered to the appellants.
On August 13, 1951, the respondent ma.de an appli-
~.,tion in the Executing Court, the District Judge,
under ss. 47, 144 and 151 of the Code of Civil Proce-
<it>re for setting a.side the ex parte order of delivery
a.nd for redelivery of possession of the house to him
and in the alternative for a.n order to the a.ppellants
to give facilities to him (respondent) to remove tho
vitrious moveables and articles mentioned in the petition. The appellants pleaded that the application
was not maintainable. The District Judge, on November 14, 1951, upheld this contention and dismissed
the application.
An appeal was taken to the High
Court and it reversed the order of the Executing
Court and directed the appellants to return possession
of the house in dispute to the respondent along with
the mo\•eables which were in the house a.t the timo
rc~pondent wa8 evicted. The High Court held that
tho Executing Court bad no jurisdiction to order the
ndct ion of the respondent because of the provisions
of Mysore House ltont and Accommodation Control
l S.C.R. SUPREME COURT REPORTS
595
Order, 1948, which was in operation on the date of
'960
eviction. The High Court having refused to gi~.e a B. v. Patankar
certificate under art. 133 the appellants obtamed
c;. Others
special leave to appeal from this Court on January 12,
v.
1955, and this is how the matter has come to this
c. G. Sastry
Court.
The question for decision mainly turns upon the
Kapur f.
applicability of the provisions of the two House Rent
Control Orders of 1945 and 1948 and how far they
were applicable to the proceedings in the suit and
execution. The Mysore House Rent Control Order of
1945 came into force on November 6, 1945, and by
s. 8(1) of this Act a. restriction\ was imposed on the .
eviction of tenants and the relevant part of this section was:-
Section 8 "(1) A tenant in possession of a house
shall not be evicted therefrom, whether in execution
of a decree or otherwise before or after the termination of the tenancy' except in accordance with the
provisions of this clause; ................................... .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . .
(2) A landlord wishing to evict a tenant in
possession shall apply to the Controller for a direction
in that behalf. If the Controller after giving the
tenant a reasonable opportunity of showing cause
ga. t th
l"
t"
.
t" fi d
"
a
ms
ea.pp 1ca 10n, 1s sa 1s e ,. .................... .
This Order was replaced by the Mysore Rent a.nd
Accommodation Control Order of 1948 which ca.me
into force on July l, 1948. The relevant provisions
of this Order, i.e., ss. 9 and 16 which are applicable to
the present appeal are as follows:-
Section 9 "(1) A tenant in possession of a house
shall not be evicted therefrom whether in execution
of a decree or otherwise except in accordance with
the provisions of this clause ..................... "; ......... .
12) A landlord who seeks to evict a' tenant in
possession shall apply to the Controller for a direction
in that behalf. If the Controller, after giving tenant
a suitable opportunity of showing cause against such
application, is satisfied:-
"
. . . . . .. . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . .
Section 16 "Nothing in this Order shall prevent
D. V.
/'(lft111h.!1r
6- Others
v.
C. G. Sastry
Kap11r J.
596
SCPREME COCRT REPORTS
[1961]
a landlord frnm filing a suit, fur eviction of a. tenant
be( ore a. com pctent civil court, provided that no
decri>e for eviction cf a tenant, passed by a. civil court
shall be executed unless a certificate to that effect is
obtained from the Controller".
It was argued on behalf of the appellants before the
High Court and that. argument was repeated before us
that tho :'llysore House Hent Coutrol Or<lrr of 1948
was repugnant to the provisions of the Tra.usfer of
Property Act (Act IV of 1882) which was brought into
force in the State of :\1ysore by Pa.rt B States (Laws)
Act, l9;il (Act] II of 1951). This Act was enacted on
February 22, 1951, and came into force on Aprill,
1951, which was termed the appointed day. It was
contended therefore that the House Control Order
cc>uld not operate on the rights of the parties on the
day when the Executing Comt made the order for
delivery of possession to the appellants, i.o., July 9,
19.51, or when the deli rnry was actual! y gi ,·en,
i.e., on ,July 22, 1951.
To test the force of this
argument it is necessary to examine tho provisions
.of Part, B State" (Laws) Act and how and when
as a consequence of it the Transfer of PropPrty
Act became ctft'ctive and operative. in the State of
Mysore. 8cctiun 3 of that Act deals with the cxten.
fiion and amendment of certain Acts and Ordinances.
The Acts and the Ordinances specified in the Schedule
were amended and became applicable a8 specified and
as a consequence the fourth paragraph of s. I for the
words" lfombay, Punjab or Delhi", the words "that
the said States" wne substituted.
Therefore the
effect of the Part H States (Laws) Act merely was that
qlla the Transfer of Property Act, tho State of Mysore
was placed 011 the same footing as the States of Bombay, Punjab or Delhi. It was by virtue of a Notification ~o. 2676.Cts. 46-51-5 dated September 12, 1951,
that the Tran~fer of Property Act was extended to
the State of Mysore as from October l, )951. Consequently the laws of the State applying to leases which
would include the :M vsore House Rout Control Order
of 1948 continued w· be in force and applicable to
cases that were pending till it was repealed by the
I S.C.R.
SUP.1:tJ!i1V1.1!i. t.:UURT REPORTS
597
Mysore Rent Control Act of 1951 which received the
President's assent on August 16, 1951. The argument,
therefore, that as from April 1, 1951, as a result of
repugnancy the House }{ent Control Order of 1948
stood repealed must be repelled as unsound and
cannot be sustained, because it was an existing law
which was saved by art. 372 of the Constitution and
remained unaffected by art. 254 .. The Punjah High
·Court in M/s. Tilakram Rambak'sh v. Bank of Patiala (1) discussing the effect_ of Part B States (Laws)
Act on the application of the Transfer of Property
Act to PEPSU said:
"All that Central Act III of 1951 has done is to ·
make it possible for Part B States to extend the Act
to any part of territory by notiffoation.
ActuaH'
however, this was never done by PEPSU or Punjt.lJ
and the Transfer of Property Act is not as such in
force there. It is unnecessary in the circumstances to
examine the argument further".
Although the question of repugnancy was raised in
the High Court at ~he time of the hearing of the
appeal, the true effect of s. 3 of the Part B States
(Laws) Act was not brought to the notice of the learn.
ed Judges nor was the Notification placed before
them, but it was discussed by the High Court in its
order refusing certificate under art. 133(1) of the Constitution. The argument of repugriancy, therefore, is
wholly inefficacious in this appeal.
The inapplicability of s. 47 to the proceedings out
of which the appeal has arisen was also raised before
us, but· that contention is equally unsubstantial
because the question whether the decree was completely satisfied and therefore the c~:mrt became f unctus
officio is a matter relating to execution, satisfaction
and discharge of the decree. It was held by this
Court in Ramanna v. Nallaparaju (')that:
"When a sale in execution of a decree is impugned on the ground that it is not warranted by the
terms thereof, that question could he agitated, when
it arises between parties to the decree, only by an
application under s. 47, and not in a separate suit".
(1) ·A.I.R •. 1959 Pb. ~+o, 447·
(2) A.I.R. 1956 S.C. 87, 91.
B. V. Patanka,
6- Others
v.
C. G. Sastry
Kapur ].
1960
B. V. Pala'1kaY
6Olliey~
v
C. G. Saslry
Kapu• }.
598
Sl:FRE:ME COl:RT REPORTS
[1961]
See also J. Marret v. Mohammad Shirazi & Sons (1)
where the facts were that an order was made bv the
Executing Court directing contrary to the teims of
the decree the payment of a certain fund to the decree-holder. The Madras High Court in K. Mohammad
Sikri Sahib v. illadhava Kurup (')held that where the
Executing Court was not aware of the amendment of
tho Rent Restriction Act by which the execution of a.
decree was prohibited and paRsed an ejectment order
age.inst a tenant, the Executing Court could not execute tL, ':lecree 1rnd any possession given under an ex
, parte order passed in 11xecution of such a decree, could
be set aside under s. 151 of the Code of Civil Procedure. The prohibition is equally puissant in the present case and s. 47 read with s. 151 would be equally
effective •,o sustain the order. of redelivery made in
fa. vour of t»e respondent.
Tho applicability of res judicata and the defences of
waiver and estoppel were also raised by the appellants. Tho contention of res judicata was based on
the plea taken by the respondent in bis written statement, dated l\Iarch 11, 1946, where be pleaded that
the civil court had no jurisdiction to order eviction
because of the House Rent Control Order, 1945, to
which the ;-eply of the appellants was that considering the nature of the suit and tho consequential
remedy that they were seeking, the plea of jurisdiction of the court was not open to the respondent.
Thereupon the trial court raised a now issue " whether
this court has jurisdiction to try the suit, in view of
the House Rent Control Order " which was decided
against' the respondent and a decree in favour of the
appellants was passed on August 23, 1945. This judgment formed the basis of the argument before us that
the plea. of inexccutability of the decree could not be
raised bec~se it was barred on the principle. of res
judicata. The plea of res judicata is not available to
· the appellants asthe prohibition on account of the
House Rent Control Order was not against the passing
of the decree but against its execution and therefore
the objection to the executabil!ty could only be taken
(lJ A.I,R. 1930 P.C. 86.
(2) A.l.R. 1949 Mad. So!I·
..
1 S.C.R. SUPREME COURT REPORTS
599
at the time of the execution of the decree which in
19° 0
the instant case could not be done because the order JJ v 1'
, 1 .
for delivery by the Executing Court was passed with-
· ,~ 0 ;~:;,:· '
out notice to the. respondent..
We must, therefore,
..
repel the contention based on the ground of res judic. G. ''"''''
cata.
'
The argument of waiver and estoppel is also devoid
of force.
This plea was based on a letter which the
respondent's lawyer sent in reply to the respondeut
asking to make arrangements to put the appellants
in possession.
The former replied thereto that his
client· was making arrangements and as soon as
he could do so, he would hand oV'er possession to
the appellants. This is slender basis for the sustain·
ability of the plea of waiver and estoppel. There is
no conduct on the part of the respondent which has
induced the appellants to change their position or has
in any way affected their ·rights and the plea of nonexecutability which has b~_en taken is based on statute
and against statute there cannot be an estoppcl. This
ground taken by the appellants is equally unsound and
must be rejected.
·
Tho contention raised that ignoring ss. 9( l) and 16
of .the 1948 House Rent Control Order is no more than
an error in the exercise of jurisdiction does nut appear
to be sound because those sections are a fetter on f lw
executability of-the decree and not merely an error in
the exercise of the jurisdiction. In the present casl'
the two sections mentioned above were a restriction
on the power of the court to execute the decree and
therefore this argumPnt must also be rejected ..
In the result this appeal fails and is dismissed with
costs.
.
Appeal di.smissed.
77
•
Kat"' ] .