Appeal No 24 of 1956
Appeal by special leave from the judgment and order dated March 31 1954 of the former Madhya Bharat High Court in Civil Revision No 183 of 1952
I M Lal and A G Ratnaparkhi for the appellant
Rameshwar Nath and section N Andley for the respondent
September 12
The Judgment of the Court was delivered by KAPUR J
This is an appeal against the judgment and order of the High Court of Madhya Bharat at Gwalior and arises out of proceedings between a landlord and his tenant taken under the Accommodation 666 Control Act XV of 1950 which for the sake of brevity will be termed the Act
On March 141948 the appellant took two houses in Morar from the respondent at a monthly rental of Rs 80 plus other charges at Rs 5 per month
On October 20 1948 the appellant brought a suit for fixation of rent in the court of the Cantonment Magistrate at Morar under the provisions of Accommodation Control Ordinance Ordinance XX of 2004 section
The Act was passed on January 25 1950 and came into force on February 10 1950
Because of the passing of the Act the plaint was returned on March 20 1950 for want of jurisdiction
Thereupon on April 28 1950 the appellant filed the suit before the Rent Controller out of which this appeal has arisen
In the suit he prayed for the fixation of fair rent at Rs 20 per month
The respondent pleaded inter alia that the suit could not be instituted before the Rent Controller and that the suit was incompetent because no notice under section 72 of the Act had been given
Both the pleas of the respondent were overruled and the Rent Controller held that the notice which the appellant had given prior to the institution of the first suit was a proper notice and he decreed the suit and fixed the fair rent at Rs 483 per annum
The respondent took an appeal to the District Judge who upheld the order of the Rent Controller but the question of notice under section 7 was not raised in that court
The respondent then filed a Revision Petition in the High Court under section 115 of the Code of Civil Procedure and under article 227 of the Constitution
The High Court held that notice under section 7 was a condition precedent to the institution of the suit that as no such notice was given the Rent Controller had no jurisdiction to make the order
The High Court also held that the Rent Controller had passed a decree which operated retrospectively from the date of the execution of the lease deed which the Controller had no authority to decree
It was further held that the original suit was properly instituted in the civil court and the passing of the Act did not take away the jurisdiction of that court and therefore the civil court should not have returned the plaint of the appellant
667 The principal question for decision is whether a suit could be instituted without a fresh notice because of section 72 of the Act  That section provides Where no rent for any such accommodation has been agreed upon or where the landlord wishes to enhance or the tenant wishes to reduce the rent agreed upon the landlord or the tenant as the case may be by giving notice in writing to the other party shall proceed for having the rent fixed under subsection 4 All that this section contemplates is that a notice should be given
There are no words which make it obligatory that the notice should be issued in terms as under the Act and be given after the Act came into force nor has it prescribed any particular form
The trial court held that a proper notice had been given and therefore section 7 was applicable
No such question was raised in appeal before the District Judge  and therefore it was not adjudicated upon
The question however was raised before the High Court
In our opinion it cannot be said that the notice which was given by the appellant was not a proper notice nor does the section mean as contended by the respondent that the notice had to be given as under and after the Act came into force
As we have said above it is significant that this point was never taken before the District Judge
Lastly the High Court held that the plaint should not have been returned by the civil court because the suit for fixation of fair rent related also to a period prior to the Act
Fairly construed the order of the Rent Controller does not operate retrospectively from the date of the beginning of the lease but appears to us to be prospective and after the coming into operation of the Act the jurisdiction was vested in the Rent Controller and not in the civil court
This point therefore has no substance
In the result this appeal is allowed and the judgment and order of the High Court are set aside and that of the trial court restored
The appellant will have his costs throughout
Appeal allowed


Summary:
The appellant decree holders in an execution proceeding accepted delivery of possession and granted a receipt to the Nazir of the Court acknowledging full delivery of possession to them but allowed the respondents Bengal Breweries to remain in possession with their permission
The appellant also permitted the execution case to be dismissed on the basis that full possession had been delivered to them by the respondents
Sometime thereafter the appellant made a fresh application for execution against the respondent for eviction which was resisted under section 47 of the Civil Procedure Code alleging that so far as they were concerned the decree had been fully executed as a result of the earlier execution proceeding which had terminated and that further execution was not permissible in law
Held that it is open to the decree holder to accept delivery of possession under 0 21 r 35 of the Code of Civil Procedure without actual removal of the person in possession
If he does that then he is bound to the position that the decree has been fully executed and it cannot be executed any more
Held further that on the principle in Saila Bala Dassi vs 681 Nirmala Sundari Dassi whereby the purchaser from the appel lant under a purchase made prior to the appeal was brought on the record of the appeal a purchaser from the respondent under a conveyance made prior to the appeal could be brought on the record of the appeal
Saila Bala Dassi vs Nirmala Sundari Dassi 1958 SCR 1287 followed Maharaja Jagadish Nath Roy vs Nafay Chandra Paramanik  approved