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
SA Gopala Rao and B R L Iyengar for the appellants
Mirle N Lakshminaranappa P Ram Reddy R Thiagarajan and C V L Narayan for the respondent
September 8
The Judgment of the Court was delivered by KAPUR J
This appeal has little substance and must therefore be dismissed
The 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 1941 executed by their father was not for legal necessity or for the benefit of the family that 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 2655 as past mesne profits and future mesne profits at Rs 250 per mensem as from December 1 1945
The respondent filed his written statement on March 11 1946 and an additional written statement on November 26 1946 whereby he raised an objection to the jurisdiction of the court by reason of the Mysore House 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 594 nature and scope of the suit had been misconceived by the trial court and that it was not based on relationship of landlord and tenant and therefore section 81 of the Mysore House 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 May 1 1941 as it was supported by legal necessity but the option of renewal was void and unenforceable for uncertainty and therefore a decree for possession was passed to be operative on the expiry of ten years ie May 1 1951
On appeal the High Court confirmed that decree on August 22 1950
On July 9 1951 the appellants took out execution of the decree and on July 22 195 1 possession was delivered 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 to 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 made an application in the Executing Court the District Judge under sections 47 144 and 151 of the Code of Civil Procedure for setting aside the ex parte order of delivery and for redelivery of possession of the house to him and in the alternative for an order to the appellants to give facilities to him respondent to remove the various 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 moveables which were in the house at the time respondent was evicted
The High Court held that the Executing Court had no jurisdiction to order the eviction of the respondent because of the provisions of Mysore House Rent and Accommodation Control 595 Order 1948 which was in operation on the date of eviction The High Court having refused to give a certificate under article 133 the appellants obtained special leave to appeal from this Court on January 12 1955 and this is how the matter has come to this Court
The question for decision mainly turns upon the 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 section 81 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 2A 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 against the application is satisfied This Order was replaced by the Mysore Rent and Accommodation Control Order of 1948 which came into force on July 1 1948
The relevant provisions of this Order i e sections 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 2A 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 this Order shall Prevent 596 a landlord from filing a suit for eviction of a tenant before a competent civil court provided that no decree for eviction of 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 the Mysore House Rent Control Order of 1948 was repugnant to the provisions of the Act IV of 1882 which was brought into force in the State of Mysore by Part B States Laws Act 1951 Act III of 1951
This Act was enacted on February 22 1951 and came into force on April 1 1951 which was termed the appointed day
It was contended therefore that 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 ie July 9 1951 or when the delivery was actually given ie on July 22 1951
To test the force of this argument it is necessary to examine the provisions of Part B States Laws Act and how and when as a consequence of it the became effective and operative in the State of Mysore
Section 3 of that Act deals with the extension and amendment of certain Acts and Ordinances
The Acts and the Ordinances specified in the Schedule were amended and became applicable as specified and as a consequence the fourth paragraph of section 1 for the words  Bombay  Punjab or Delhi  the words  that the said States  were substituted
Therefore the effect of the Part B States Laws Act merely was that qua the  the State of Mysore was placed on the same footing as the States of Bombay Punjab or Delhi
It was by virtue of a Notification No 2676 Cts
46 51 5 dated September 12 1951 that the was extended to the State of Mysore as from October 1 1951
Consequently the laws of the State applying to leases which would include the Mysore House Rent Control Order of 1948 continued to be in force and applicable to cases that were pending till it was repealed by the 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 Rent 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 article 372 of the Constitution and remained unaffected by article 254
The Punjab High Court in Ms Tilakram Rambaksh vs Bank of Patiala 1 discussing the effect of Part B States Laws Act on the application of the 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 notification
Actually however this wag never done by PEPSU or Punjab and the 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 the time of the hearing of the appeal the true effect of section 3 of the Part B States Laws Act was not brought to the notice of the learned Judges nor was the Notification placed before them but it was discussed by the High Court in its order refusing certificate under article 1331 of the Constitution
The argument of repugnancy therefore is wholly inefficacious in this appeal
The inapplicability of section 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 court became functus officio is a matter relating to execution satisfaction and discharge of the decree
It was held by this Court in Ramanna vs Nallaparaju 2 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 be agitated when it arises between parties to the decree only by an application under section 47 and not in a separate suit 
1 AIR 1959 Pb
440 447
2 AIR 1956 C 87 91
598 See also J Marret vs Mohammad Shirazi  Sons 1 where the facts were that an order was made by the Executing Court directing contrary to the terms of the decree the payment of a certain fund to the decree holder
The Madras High Court in K Mohammad Sikri Sahib vs Madhava Kurup 2 held that where the Executing Court was not aware of the amendment of the Rent Restriction Act by which the execution of a decree was prohibited and passed an ejectment order against a tenant the Executing Court could not execute the decree and any possession given under an ex parte order passed in execution of such a decree could be set aside under section 151 of the Code of Civil Procedure
The prohibition is equally puissant in the present case and section 47 read with section 151 would be equally effective to sustain the order of redelivery made in favour of the respondent
The applicability of res judicata and the defenses of waiver and estoppel were also raised by the appellants
The contention of res judicata was based on the plea taken by the respondent in his written statement dated March 11 1946 where he pleaded that the civil court had no jurisdiction to order eviction because of the House Rent Control Order 1945 to which the reply of the appellants was that considering the nature of the suit and the 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 new 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 231945
This judgment formed the basis of the argument before us that the plea of in executability of the decree could not be raised because it was barred on the principle of res judicata
The plea of res judicata is not available to the appellants as the 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 executability could only be taken 1 AIR 1930 PC 86 2 AIR 1949 Mad
599 at the time of the execution of the decree which in the instant case could not be done because the order for delivery by the Executing Court was passed without notice to the respondent
We must therefore repel the contention based on the ground of res judicata
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 respondent 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 go he would hand over possession to the appellants
This is slender basis for the sustainability 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 non executability which has been taken is based on statute and against statute there cannot be an estoppel
This ground taken by the appellants is equally unsound and must be rejected
The contention raised that ignoring sections 91 and 16 of the 1948 House Rent Control Order is no more than an error in the exercise of jurisdiction does not appear to be sound because those sections are a fetter on the executability of the decree and not merely an error in the exercise of the jurisdiction
In the present case the two sections mentioned above were a restriction on the power of the court to execute the decree and therefore this argument must also be rejected
In the result this appeal fails and is dismissed with costs
Appeal dismissed


Summary:
These petitions by certain stage carriage permit holders for appropriate writs quashing seven schemes for nationalisation of road transport services in West Godavari District approved and enforced from different dates by the Government of Andhra Pradesh called in question the constitutional validity of Ch
IVA of the  as amended by Act 100 of 1956 and the validity of r 5 of the Andhra Pradesh Motor Vehicles Rules framed by the State Government under section 681 of the Act and the note in terms of the said rule appended to the schemes which was said to be inconsistent with the Act and was as follows The frequency of services of any of the notified routes or within any notified area shall if necessary be varied having regard to the traffic needs during any period
 Held that in view of the decision of this Court in H C 643 Narayanappa vs The State of Mysore it was no longer open to the petitioners to contend that the provisions of Ch
IVA of the IV of 1939 as amended by the Central Act 100 of 1956 were ultra vires the powers of the Parliament
H C Narayanappa vs The State of Mysore 1960 3 SCR 742 followed
Nor was it correct to contend that Ch
IVA of the Act was invalid on the ground that it infringed article 19ig of the Constitution and was not saved by article 196 as the powers conferred on the State by section 68C of the Act exceeded the limits of article 196ii of the Constitution
Article 196ii is couched in very wide terms the word service  used by it is wide enough to include all species of motor service and it does not in any way limit the States  power to confer on itself a monopoly in respect any area in exclusion of any person or persons
The only classification that Ch
IVA of the Act makes is between the State Transport Undertaking and private transport undertakings whether carried on by individuals or firms or companies and that classification is reasonably connected with the object it has in view
It was not therefore correct to say that it contravenes article 14 of the Constitution
That Chapter does not confer any arbitrary and discriminatory power upon the State Transport Undertaking nor does the quasi judicial procedure prescribed by it seek to cover such power
Any mala fide or collusive exercise of the power therefore in deprivation of an individual s rights can only be a ground for quashing a particular scheme alone but not for declaring the chapter void
Since that chapter provides a complete and satisfactory machinery for reasonably regulating the exclusion of all or some of the private operators from a notified area or route it requires no liberal construction
Gullapalli Nageswara Rao vs Andhra Pradesh Road Transport Corporation 1959 SUPP
1 SCR 319 referred to
Saghir Ahmad vs The State of U P   considered
Official bias inherent in the discharge of a statutory duty as has been pointed out by this Court is distinct from personal bias for or against any of the parties
Since in the instant case the State Road Transport Corporation was neither legally nor factually a department of the State Government and the State Government in deciding the dispute between the said undertaking and the operators of private buses was only discharging its statutory function no question of official bias could arise
Gullapalli Nageswara Rao vs The State of Andhra Pradesh  and H C Narayanappa vs The State of Mysore   considered
644 The observations made by this Court in Srinivasa Reddy vs The State of Mysore in regard to piecemeal implementation of a scheme were directed against any abuse of power by way of discrimination as between operators and operators in respect of a single scheme
Since the seven schemes in question were intended to avoid the vice inherent in piecemeal implementation of a single scheme and were meant to be implementated in their entirety from different dates those observations did not apply to them
Srinivasa Reddy vs The State of Mysore   explained
There can be no doubt that r 5 of the Andhra Pradesh Motor Vehicles Rules in conferring on the State Transport Undertaking the power to vary the frequency of services gave it the power to effect a substantial modification in the scheme permissible only under section 68E of the Act and as such the rule must be declared void
But since the note appended to the schemes in pursuance of the rule is severable from the schemes it should be deleted and the schemes must be declared valid
The word route  in section 68C of the Act does not refer to a preexisting route
It is permissible under that section to frame a scheme in respect of any area or route or any portions thereof or a new route since there is no inherent inconsistency between an area  and a route