HON’BLE SRI JUSTICE K.S. APPA RAO C.R.P.No.1776 of 2000 Date: 14-10-2011 Between: 1. Somenlata Gandi and others ………. Petitioners And 1. Smt. Azeemunissa Begum and others …… Respondents HON’BLE SRI JUSTICE K.S. APPA RAO C.R.P.No.1776 of 2000 ORDER: This Civil Revision Petition is filed aggrieved by the order dated 24-04-200 passed in R.A.No.44 of 2004 on the file of the Chief Judge, City Small Causes Court, Hyderabad. 2. The brief facts of the case are that the revision petitioners- landlords filed R.C.No.240 of 1982 before the Principal Rent Controller, Hyderabad, seeking eviction of the respondents-tenants from the petition schedule premises which consist of a building along with open land admeasuring 16,000 square yards. Eviction orders were passed and the petitioners-landlords got executed the eviction order and possession of the premises was delivered to them. Challenging the delivery of 16,000 square yards of open land along with the building to the petitioners-landlords, the respondents-tenants filed a petition in I.A.No.346 of 1997 under Section 47 read with Sections 144 and 151 of C.P.C. and Rule 23 of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short ‘the Act’) seeking a direction to the petitioners-landlords to redeliver the vacant site of 16,000 square yards adjacent to the petition schedule house. After due enquiry, the learned Rent Controller allowed the I.A. directing the petitioners-landlords to redeliver the vacant site of 16,000 square yards to the respondents-tenants and to put them in possession. Being aggrieved, the petitioners-landlords filed R.A.No.411 of 1997 before the Chief Judge, City Small Causes Court at Hyderabad, wherein the learned Chief Judge observed that the Rent Controller has erred in ordering restoration of the open site measuring 16,000 square yards and on this point, the appeal has to be allowed, but in view of the bar under Section 15 of the Act, the appeal was dismissed. Being aggrieved, the present Civil Revision Petition is filed. 3. Learned counsel appearing for the Revision Petitioners- landlords mainly urged that the learned Chief Judge erred in thinking that the appeal is not maintainable without appreciating that the respondents-tenants had not filed any execution petition, but had filed I.A.No.346 of 1997 under Sections 144 and 151 of C.P.C. and Rule 23 of the Act and such an application could not have been considered as an application in execution and consequently, the finding of the learned Chief Judge that the appeal is not maintainable is not correct, and in support of his contentions, he placed reliance on the decision reported in HIDAYATHULLAH v. APPELLATE AUTHOIRTY (RENT CONTROLLER) III JUDGE [1]. It is further urged that this Court under Section 22 of the Act has ample power to set right the irregularity and illegality in the impugned order of the Rent Controller. 4. Now the point for consideration is whether the order of the learned Chief Judge in R.A.No.411 of 1997 dated 24-04-2000 is sustainable? POINT: 5. I.A.N.346 of 1997 was filed by the respondents-tenants under Section 47 read with Sections 144 and 151 of C.P.C. and Rule 23 of the Act for a direction to the petitioners-landlords to deliver the site of 16,000 square yards adjacent to the house bearing No.8-2-269, Road No.2, Banjara Hills, Hyderabad. The respondents-tenants claim is that the said land is not the subject matter of the appeal and hence, it could not have been delivered to the petitioners-landlords. 6. As seen from the record, R.C.No.240 of 1982 was filed for eviction of the respondents-tenants from the petition schedule premises, which consists of a building along with open land admeasuring 16,000 square yards. After the eviction orders were passed, the petitioners-landlords got executed the eviction order in the execution proceedings and possession was delivered to them as per the sketch in Ex.P-1. Challenging the same, the respondents-tenants filed I.A.No.346 of 1997 and the same was allowed by the learned Rent Controller ordering redelivery of the vacant site of 16000 square yards. 7. In Appeal, the learned Chief Judge observed that the Rent Controller erred in ordering restoration of the open site measuring 16,000 square yards to the respondents-tenants, however, while placing reliance on the proviso to Section 15 of the Act, dismissed the appeal. The proviso to Section 15 of the Act reads as follows: “Provided that an order passed in execution under this section shall not be subject to an appeal, but shall be subject to revision under section 22.” 8. As per Section 22(1) of the Act, the High Court is empowered to examine the legality, regularity or propriety of the order passed in execution under Section 15 or 20 of the Act. In the decision reported in HIDAYATHULLAH’s case (1 supra), the Madras High Court, while clarifying the said legal position, held that the order of restitution of possession passed under Section 144 of C.P.C. does not fall under Section 18(1) of the Act and the appeal filed against the same is not barred. In the said judgment, the Madras High Court referred to another Judgment reported in FATHIMA AUTOMOBILES v. P.K.P. NAIR [2], wherein it was held that: “The object of S.18(2) is to see that unlike an order of eviction which could be subject to appeal under S. 23 or revision under S.25, no appeal or revision would lie against an order passed under the section directing delivery in execution under sub-sec.(1) of S.18 of the Act. S.25 of the Act provides for an appeal to an appellate authority constituted under the Act against any order passed by the Rent Controller. It is significant to note that S.23 does not refer to an order passed under Ss.10,14,15,16 and 17. Thus, a close reading of S. 18 and S.23, indicates that there may be orders passed by the Rent Controller which may not fall within S.18(1) and that those orders may be subject to appeal under S.23 of the Act. It is further significant to note that S.23(1)(b) confers right of appeal to 'any person aggrieved' by an order passed by the Rent Controller. The use of expression 'any person' in S.23(1)(b) seems to suggest that it is not only the parties to the eviction order but also persons affected by any order passed by the Rent Controller could file an appeal. If the filing of an appeal under S.23 is contemplated only by the parties to the eviction proceeding, then the Legislature would have used the words 'any party aggrieved' instead of 'any person aggrieved'. The use of the general expression like ‘person’ would indicate that, as already stated, an appeal could be maintained not only by a party to the eviction proceeding but also by a person who feels aggrieved by any order passed by the Controller. 9. In the present case the execution Court has passed order directing the petitioners-landlords to deliver the possession of the property in pursuance of the order of eviction, and that order alone can be taken as an order passed under Section 18(1) of the Act, which should be taken as an independent order passed under C.P.C. and not under the Rent Control Act. Section 18(2) of the Act bars an appeal or revision only in respect of an order passed in execution under sub- section(1). But that section will not be a bar for an appeal. It is further observed that Section 144 of C.P.C. is to be construed as an application for execution. But that may be for the purpose of proceedings under the Code of Civil Procedure. 10. Therefore, in view of the above dictum, the appeal against the orders, dated 21-11-1997 in I.A.No.346 of 1997 is maintainable and there is no bar under Section 15 of the Act as held by the learned Chief Judge. However, as the learned Chief Judge observed that the Rent Controller erred in ordering restoration of the open site measuring 16,000 square yards, I see no grounds to differ with the said finding, and in any view of the matter, the order of the learned Chief Judge to the extent of holding that there is bar under Section 15 of the Act cannot be sustained and the same is liable to be set aside. 11. Accordingly, the Civil Revision Petition is allowed. The order of the Chief Judge, dated 24-04-2000 dismissing the appeal holding that there is bar under Section 15 of the Act, is set aside, however the other findings are confirmed. Consequently, R.A.No.411 of 1997 stands allowed. No costs. _______________ K.S. APPA RAO, J Date: 14-10-2011 YCR [1] AIR 1986 MADRAS 30 [2] AIR 1985 MADRAS 318