ivil Appeal No 289 of 1982
1003 From the Judgment and Order dated 177
1981 of the Delhi High Court in SAO No 249 of 1981
Soli J Sorabji Anil Kumar Gupta and Brij Bhushan for the Appellant
BR Agarwala for the Respondent
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
This appeal by special leave arises from the order of the High Court of Delhi dated 17th of July 1981 dismissing the second appeal in limine against the  order dated 2nd July
1981 in RCA No 87 1 of 1980 of the Rent Control Tribunal Delhi
The order of eviction in this case on the ground of bona fide requirement of the landlord was passed by the Rent Controller on or about 15th of October 1960
There was an appeal from the said order of the Rent Controller and the appeal was dismissed on or about 9th October 1961 by the 2Rent Tribunal
In May 1962 the respondent filed an applica tion before the Competent Authority under section 19 of the Slum Areas Improvement of Clearance Act 1956 hereinafter called the Slum Act  for permission to execute the order of eviction
On or about 21st of March 1963 the said application was dismissed by the Competent Authority under the Slum Act
In the meantime in January 1964
the came into operation
On the 19th of April
1978 the respondent filed a second application before the Competent Authority for permission to execute the order of eviction
In June 1979 permission was granted by the appropriate authority under the Slum Act
On 28th of August 1979 the appeal from the said Rent Controller was dismissed by the High Court
Thereafter on or about 25th of September 1979 the respond ent herein filed an application before the Rent Controller for execution of the decree
Objections under section 47 Order 21 Rule 22 and section 15 1 Code of Civil Procedure were filed on behalf of the appellant
On 22nd of August 1980 order was passed by the Rent Controller that the execu tion application was not barred by limitation
Execution was stayed however to decide the question of fresh tenancy
There was an appeal under section 38 of the Delhi Rent Control Act 1958 filed by the appellant against the order of 22nd of August 1004 1980
Thereafter the Tribunal in July 1981 ordered that the execution was maintainable and was not barred by limitation and it was further held that supplementary objections were not maintainable
On 17th of July 1981 the High Court dismissed in limine the second appeal from the same as aforesaid
The question that falls for consideration is whether the decree for eviction of the tenant under the Rent Act passed against the appellant was executable by the respondent or whether the same had become barred by limitation or by principles of res judicata
As mentioned hereinbefore the decree holder had filed an application under section 19 of the Slum Act to obtain the permission from the competent authority in the year 1962
The permission was not granted and the application was dismissed in the year 1963
The decree holder filed a fresh application seeking permission from the competent authority in the year 1978
The permis sion was granted by the order dated 18th of June 1979
Thereafter on 25th September 1979 the decree holder filed application seeking execution of the order of eviction
The main objection raised by the appellant on the point of limitation was firstly that the decree in question was passed in 1960 and therefore the decee holder ought to have got it executed within 12 years by 1970
Secondly it was contended that the application under section 19 of the Slum Act was filed in the month of March 1975 but the decree holder did not take any steps for 12 years which expired before 20th of March 1975 to obtain permission from the Competent Authority and from that aspect also the execution application was time barred
There are two aspects of the matter which have to be borne in mind one was when the decree became executable in the facts and circumstances of the case and what would be the period applicable for such execution
On the other aspect of the matter it is necessary to consider the ques tion whether once permission under the Slum Act was refused does it create resjudicata for the second application As mentioned hereinbefore the Rent Controller by the impugned order held that the execution application was not barred by time because in the opinion of the said Rent Controller till such time the permission of the Competent Authority Slums was obtained no execution application could have been filed
The Trial Court further held that the amendment to section 19 of the Slum Act did not affect 1005 the pending execution application or in other words limi tation would not have started running
However the trial court held that in regard to dispute about the creation of fresh tenancy the matter required investigation and after holding that execution application was within the time adjourned the case for evidence of the appellant and stayed the execution during the pendency of the said objections
The said objections have been overruled and these are not subject matter of this appeal
Aggrieved bythe said order the appellant filed appeal before the Rent Tribunal
The Tribunal noted the relevant provisions of the Slum Act
Section 191 as it stood before the amendment read as follows 191 Notwithstanding anything contained in any other law for the time being in force no person who has obtained any decree or order for the eviction of a tenant from any buildings in a slum area shall be entitled to execute such decree or order except with the previous permission in writing of the Competent Authority
 Section 191 of the said Act now reads as follows 191 Notwithstanding anything contained in any other law for the time being in force no person shall except with the previous permission in writing of the Compe tent Authority a institute after the commencement of the Slum Areas Improvement and Clearance Amend ment Act 1964 any suit or proceeding for obtaining any decree or order for the eviction of a tenant from any building or land in a slum area or     It is not disputed that 12 years had expired when the execution petition was filed from the date of the order of eviction but not from the date the permission of the Compe tent Authority Slums was obtained
The question there fore is whether the Indian Limitation Act 1908 or Limita tion Act 1963 was applicable to the execution proceedings and whether the limitation would start running from the date the permission of the Competent Authority Slums was ob tained
So far as the first question about the applicability of the Limitation Act it is necessary to refer to section 42 of the Delhi Rent Control hereinafter called the Act  which provided that an order of eviction has to be executed like a decree of the Civil Court
The provisions of the Code of Civil Procedure executing the decree are made applicable by legal fiction recognised by virtue of section 42 of the Act
In any case procedure of the Small Causes is adopted by the Controllers under the provisions of the Act wherein also in execution the provisions of Code of Civil Procedure are applicable and as such law of limitation would be attracted
The question is when the limitation starts running
Once the limitation started running then unless the statute comes to the rescue of a person the period would expire after the efflux of time
Discussing certain authorities the Rent Tribunal held that the limitation started from the date of the grant of the permission and as such the execution application was well within time
The Tribunal dismissed the appeal
The High Court summarily rejected the second appeal
The question before us is whether this execution was barred by limitation and secondly whether there was a question of res judicata because a prior application for permission by the Slums Clearance Authority was rejected
This particular point was considered by a learned single Judge of the Delhi High Court in Des Raj and another vs Noor Khan AI R 1985 Delhi 470 where the High Court held that under Article 136 of the Limitation Act of 1963 a decree was executable within 12 years from the date when it became executable
where the decree when passed was not enforceable no execution could be levied and hence period of limitation would not commence
A decree of eviction passed under the Delhi and Ajmer Rent Control Act 1952 on 19 2 60 according to the said decision became executable only on 8 5 81 in the case when permission under the Slum Act to execute it was obtained and therefore the 12 years  period prescribed by article 136 to execute the decree was held to have commenced only on 8 5 81 and not on 19 2 60
The High Court followed a Full Bench decision of the Allahabad High Court and a division bench decision of the Patna High Court
It was further held that there was no bar under section 19 of the Slum Act to a second or subsequent application seeking permission to execute the order of eviction of tenant obtained under section 131e of the Delhi and Ajmer Rent Control Act 1952 in view of the changed 1007 circumstances entitling grant of the permission being shown
This decision negates the two principal contentions urged in this case on behalf of the appellant namely there was no question of res judicata in granting subsequent permission under the Slum Act if changed circumstances so warranted and secondly limitation would start after the permission was granted
But the Delhi High Court had no occasion to consider the effect of the decision of this Court in Ravi Dutt vs Rattan Lal  where it was held that the relevant provisions of the Delhi Rent Act for eviction on the ground of bona fide requirement being in Chapter III A of the said Act had overriding effect and the Slum Act was rendered inapplicable
If that is the position then no permission under Slum Act was at all necessary in case of a decree for bona fide requirement
The said princi ple was reiterated in two previous decisions
If that was so then the decree for eviction having been passed on 15th October 1960 and the application for execution being filed on or about 25th September 1979 was clearly barred by limitation
But the basic question in the instant case as we have noted from the facts of the case is that the decree for eviction under the Rent Act was passed in October 1960 and the appeal against the same was dismissed in October 1961 by the Tribunal
Thereafter an application was made in May 1962 for permission under section 19 of the Slum Act as it then stood was dismissed in March 1963
Thereafter no action was taken upto 1978
When in 1978 action was initiat ed by filing the second application under the Slum Act 12 years from the dismissal of the application under the Slum Act had passed and the decree had become barred
The decree had clearly become barred by limitation
Article 136 of the provides that a decree can be executed within 12 years from the date on which it became executable
Decree passed by the Rent Controller even if it was not executable and enforceable unless permission under the Slum Act had been taken which as noticed before was not the position in law the steps for such permission had become barred
Steps for filing the application under the Slum Act were not taken on refusal of the first application within 12 years thereof
It is apparent therefrom that the execu tion of the decree for eviction which was passed on 15th of October 1960 became time barred on 14th of October 1963 under Article 182 of the Indian Limitation Act 1908 as it stood at that time
Under Section 31a of the 1963 Limita tion Act the provisions of the 1963 Limitation Act would not be availed of in respect of an application for which the period of limitation had expired before the commencement of the 1963 1008 Limitation Act that is to say 1164
But even if article 136 of the was attracted it had become barred after 12 years from the date of the decree ie 15th October 1960
In the Bench decision the Calcutta High Court in Lala Baijnath Prosad and others vs Nursingdas Guzrati AIR 1958 Calcutta 1 at p 8
Chakravartti CJ speaking for the division bench observed The right to enforce the decree it appears to me is one thing the possibility or practicability of exercising the right is another
If by the terms of a decree the decreeholder has become entitled to execute it immediately an instant right to execute it has accrued to him contemporaneously with the passing of the decree
Even if he is prevented by some external circumstance from enforcing the decree for some time the right as a right is nevertheless a present right
And what is a present right is not merely the right declared by the decree but the right to enforce the decree because if a decree de clares certain rights in favour of a person and there is nothing in the decree itself by which they are declared with effect from a future date or which postpones the right to execution to some date in the future there is no reason to say that a present right to enforce the decree does not accrue to the decree holder as soon as the decree is passed
It maybe that though entitled under the terms of the decree to enforce it immediately he cannot in fact do so for some time by reason say of having to comply first with some procedural requirement as in the present case but that only means that it is not practicable for him yet to enforce the decree and not that a present right to enforce it has not accrued   The aforesaid principles in our opinion would be applicable to the facts and circumstances of the present case
It has been emphasised that there was no impediment or disability in the way of the respondent in applying for permission from the Competent Authority under the Slum Act
It was however urged that unless the circumstances changed the permission under the Slum Act could not have been grant ed but for the off chance of circumstances changing and thereby giving a right to apply for permission under the Slum Act a decree cannot be kept in suspended animation
As we have noted before after the refusal of the application in March 1963 until April 1978 there 1009 were no steps taken
This feature and this aspect in our opinion distinguishes this case from the other cases
quite apart from the fact that in the light of the decision of this Court in Ravi Dutt vs Rattan Lal supra there was no requirement of permission under the Slum Act and as such no impediment in putting the decree dated 15th October 1960 into execution
It has further to be borne in mind that respondent had filed a second application for permission after lapse of more than 15 years there was in any event
no legal impediment or legal bar which prevented the re spondent from making the application for permission to the competent authority under the Slum Act before
It was argued that the respondent did not apply because there was no change of circumstances which would entitle the respondent to obtain permission
It was argued that the second applica tion was made in 1978 and at that time the law under the Slum Act had altered as we have noticed
It appears to us that in this case in any event no permission was required to execute the decree
Therefore the second application was unnecessary
In that view of the matter in this case it is not necessary to examine whether a second application lay or not
We are inclined to the view that an application might lie if it was within the period of limitation
We need not decide in this case the question of res judicata
It is clear that the order of eviction passed by the Rent Controller as confirmed by the Tribunal in 1961 had become obsolete in 1978 when the second attempt to execute the same was made
In that view of the matter we are of the opinion that it was not just equitable and in good conscience to allow such stale claims to be effectuated and that would be contrary to the principles of the as well as Indian Limitation Act 1908
In the premises the order dismissing the appeal from the Rent Tribunal must be set aside and the application made for execution must be dismissed
It must be held that the claim to execute the order of eviction of the Rent Controller in this case dated 15th October 1960 had become time barred
The appeal is allowed and the judgment and order of the High Court are set aside
In the facts and circumstances of the case however there will be no order as to costs
NPV Appeal allowed


Summary:
The Rent Controller passed an order of eviction against the appellant tenant in October 1960 on the ground of bona fide requirement of the landlord
The appeal against this order was dismissed by the Rent Tribunal in October 1961
The application of the respondentlandlord for permission to execute the order of eviction under Section 19 of the Slum Areas Improvement of Clearance Act 1956 filed in May 1962 was dismissed by the Competent Authority in March 1963
In the meantime in January 1964 the came into operation
The respondent filed a second application in April 1978 for permission to execute the eviction order
Permission was granted in June 1979
In September 1979 the respondent filed an application before the Rent Controller for execution of eviction order
Objections under Section 47 Order 21 Rule 22 and Section 151 of the Code of Civil Procedure were filed on behalf of the tenant
The Rent Controller passed an order on August 22 1980 holding that the execution application was not barred by limitation but stayed the execution to decide the question of fresh tenancy
An appeal against this order was filed by the appellant before the Tribunal which held that the execution was main tainable and was not barred by limitation and that supple mentary objections were not maintainable
The High Court confirmed this order by dismissing the second appeal in limine
In the appeal by the tenant before this Court the question for 1002 consideration was whether the decree for eviction under the Rent Act passed against the respondent was executable by the appellant or whether the same had become barred by limita tion or by res judicata Allowing the appeal this Court HELD 11 The claim to execute the order of eviction of the Rent Controller dated 15th October 1960 had become time barred
1009G 12 It was not just equitable and in good conscience to allow such stale claims to be effectuated and that would be contrary to the principles of the as well as the Indian Limitation Act 1908
1009E F 13 The execution of the decree for eviction passed on 15th of October 1960 became time barred on 14th of October 1960 under Article 182 of the Indian Limitation Act 1908 as it stood then
Under section 31a of the 1963 Limitation Act the provisions of the 1963 Limitation Act would not be availed of in respect of an application for which the period of limitation had expired before the commencement of the 1963 Limitation Act that it to say 111964
But even if Article 136 of the was attracted it had become barred after 12 years from the date of the decree ie 15th October 1960
1007G H 1008A 14 There was no requirement of permission under the Slum Act and as such no impediment in putting the decree dated 15th October 1960 into execution
Second application for permission was filed after a lapse of more than 15 years there was in any event no legal impediment or legal bar which prevented the respondent from making the applica tion for permission to the competent authority under the Slum Act before
1009B C 15 The order of eviction passed by the Rent Controller as confirmed by the Tribunal in 1961 had become obsolete in 1978 when the second attempt to execute the same was made
1009E Des Raj and another vs Noor Khan AIR 1985 Delhi 470 Ravi Dutt vs Rattan Lal  and Lala Baijnath Prosad and others vs Nursingdas Guzrati AIR 1958 Calcut ta 1 at p 8 referred to