ESA No.1134 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. ESA No.1134 of 1985 Date of Decision: 29.8.2008 Baldev Krishan .....Petitioner Vs. Sher Singh ....Respondent .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Jaspal Singh, Advocate for the petitioner. ... RAJIVE BHALLA, J (Oral) Challenge in this appeal is to the order dated 12.3.1985 passed by the District Judge, Amritsar, dismissing the appeal filed by the appellant as not maintainable. The controversy herein falls within a narrow compass. Smt.Chanan Devi, the original landowner filed a petition for ejectment of the respondent. The Rent Controller directed the ejectment of Sher Singh, vide order dated 26.10.1983. In the meanwhile, Chanan Devi passed away and an execution application was filed allegedly by the appellant, through his special attorney Yogesh Kumar, who in turn, authorised Yashpal Seth,Advocate, to file the execution application. Warrants of possession were issued and possession was delivered to the decree-holder on 18.7.1984. Sher Singh filed an application for restoration of possession, alleging that Baldev Krishan, though a son of Chanan Devi,had no right to file the execution in the absence of other legal representatives, more ESA No.1134 of 1985 2 particularly, as Baldev Krishan had asserted devolution of proprietary rights, with respect to the tenanted premises, on the basis of a Will. It was further asserted that no Power of Attorney had been produced, whereby Baldev Krishan authorised Yogesh Kumar to file the execution petition on his behalf. On the basis of the above assertions, as also the failure of Baldev Krishan to produce the Will, the Executing Court held that Yashpal Seth, Advocate, was not authorised to file the execution application and as a consequence recalled the warrants of possession and directed the appellant to restore possession to Sher Singh. The appellant filed an appeal, which was dismissed by the District Judge, Amritsar, by holding that such an appeal is not maintainable. Counsel for the appellant contends that as the matter in dispute ended with a direction to deliver possession i.e. an order passed in terms of Section 144 of the C.P.C., the said order would be deemed to be a decree in view of the definition of the word “decree” contained in Section 2(2) of the C.P.C., and, therefore, appealable in accordance with the provisions of the Code. The appellate Court, therefore, committed an error of jurisdiction,while holding that the appeal was not maintainable. I have heard learned counsel for the appellant and perused the impugned order. Section 17 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as `the Act') postulates that every order passed by a Rent Controller, under Section 13 of the Act shall be executed by a civil Court, having jurisdiction in the area, as if it were a decree of that Court. Thus, an order of ejectment passed under Section 13 of the Act shall be executed as a decree “of a civil Court”. The order dated 23.1.1985 was, ESA No.1134 of 1985 3 therefore, passed by a civil Court “while dealing with an order, which is deemed to be a decree”. As a consequence of the provisions of Section 17 of the Act, the provisions of the Code of Civil Procedure, would necessarily apply, to proceedings for execution of an order passed by a Rent Controller and as a consequence Section 144 of the C.P.C., would apply to orders passed by a Court, executing the order passed by the Rent Controller. Section 144 of the C.P.C. reads as under :- “”144. Application for restitution – (1) where and in so far as a decree (or an order) is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, placed the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied, reversed, set aside or modified and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order.” Section 144 of the C.P.C. applies not only to the reversal of a decree but also to the reversal/setting aside of “an order” and even then not ESA No.1134 of 1985 4 necessarily in a suit, appeal or revision but in “any other proceedings” and in execution proceedings. The above conclusion flows logically from a bare perusal of the language used in Section 144 of the C.P.C. The order passed by the Rent Controller, while recalling the warrants of possession and directing the appellant to deliver possession to Sher Singh in the exercise of powers of an executing Court was, therefore, an order passed under Section 144 of the C.P.C. Section 2(2) of the C.P.C. reads as follows : (1) XXX (2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include - (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for fault.” Section 2(2) of the C.P.C. defines the word “decree” to include an order passed under Section 144 of the C.P.C. An order passed under Section 144 C.P.C. would, therefore, be deemed to be a decree, as defined under the Code and appealable as such in accordance with the provisions that govern appeals from original decrees. The first appellate Court, ESA No.1134 of 1985 5 disregarded the provisions of Section 17 of the Act, Section 2(2) and Section 144 of the C.P.C., and, therefore, arrived at an erroneous conclusion that the appeal is not maintainable. Consequently, the present appeal is allowed, the order dated 12.3.1985 is set aside and the matter is remitted to the District Judge, Amritsar, to decide the appeal afresh, in accordance with law, within a period of three months from the date of receipt of a certified copy of this order. Parties are directed to appear before the District Judge, Amritsar, on 29.9.2008. 29.8.2008 (RAJIVE BHALLA) GS JUDGE