Case: Balak Singh Vs. Waqf Alee Allah Kayam Karda Ahmad Ullahkhan Saheb

the Act reads thus:"168. (1) When a decree for arrears of rent against an exproprietary, an occupancy or hereditary tenant has not been completely satisfied within one year from the date of such decree by any mode of execution other than sale of holdings, the land-holder may apply to the Court, which passed the decree, for the issue of a notice to the tenant for payment of the amount outstanding and for his ejectment in case of the default and the Court shall thereupon issue such notice.(2) The notice shall require the tenant to appear within thirty days of the service of the notice, and either to show cause why he should not be ejected from the holding, or to admit the claim and obtain leave to pay the amount into the Court within one hundred and twenty days from the date of his appearance in the Court.(3) If the tenant does not appear in accordance with the terms of the notice, or having appeared either does not show cause why he should not be ejected or does not ask for leave to pay, the Court shall immediately order his ejectment from the holding.(4) If the tenant appears and obtains leave to pay, then, unless within one hundred and twenty days from the date of his appearance in the court, the tenant has paid the amount or payment thereof has been certified to the Court in accordance with Rule 2, Order XXI of the Code of Civil Procedure, 1908, the Court shall on the 31st of May next following, order his ejectment.(5) The order of ejectment shall be executed on or after the first day of June next following the date of the order. If within one month after the delivery of possession, the tenant deposits the decretal amount, the ejectment order shall be cancelled and possession restored forthwith to the tenant.(6) No extension of time for payment shall be allowed:Provided that the tenant shall be ejected only from such portion of the holding the rent of which does not exceed onesixth of the decretal amount."7. The learned counsel for the appellant contends that an appeal lies under Section 271 (2) of the Act, which reads as follows:"An appeal shall lie from an order mentioned in Section 47 or Section 104 or Section 144 or in Order XLIII, Rule 1 of the Code of Civil Procedure, 1908, and made by an Assistant Collector of the first class or a collector.Such appeal shall lie to the Court, if any, having jurisdiction under Section 265 of this Act to hear an appeal from the decree in the suit, or in the case of an application for execution, to the Court having jurisdiction to hear an appeal from the decree which is being executed."8. The answer to the question depends on whether the order under Section 168 of the Act can be said to be an order relating to the execution, discharge or satisfaction of the decree. It seems to us that the order dated August 8, 1958, was an order relating to the execution, discharge or satisfaction of the decree for rent, dated May 17, 1956.9. It will be noticed that sub-s. (1) of Section 168 contemplates the decree-holder having tried to execute the decree by other modes of execution. If the decree has not been satisfied within one year of the date of the decree, the decree-holder is entitled to apply to the Court which passed the decree for the issue of the notice to the tenant for payment of the amount outstanding and for ejectment in case of default. Once the conditions are satisfied the Court had no option but to issue a notice. The object of the application is satisfaction of the decree; it may be satisfied by payment of the amount outstanding or failing that by ejectment in case of default. Under sub-section (2) the tenant is entitled to apply and obtain leave to pay the amount in Court within 120 days from the date of appearance in the Court. He is also entitled to show cause why he should not be ejected. Under sub-sec. (3) the Court is entitled to immediately order his ejectment from the holding if the tenant does not appear in accordance with the terms of notice or having appeared either does not show cause why he should not be ejected or does not ask leave to pay. Under sub-section (4) in default of payment or certification to the Court in accordance with R. 2, O. 21 of the Code of Civil Procedure, the Court is entitled to order his ejectment on May 31, next following. Then sub-section (5) provides for the execution of the order of ejectment.10. It seems to us that the whole scheme of the Section shows that the application under Section 168 of the Act is a step in the execution, discharge or satisfaction of the decree. The learned Counsel for the respondent contends that the, application is to the Court which passes the decree. But this does not necessarily show that the order passed on the application is not one relating to the execution, discharge or satisfaction of the decree. As provided in Section 38 of the Civil Procedure Code "a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution."11. While Section 168 deals with a decree for arrears of rent against on exproprietary, an occupancy or hereditary tenant, Section 170 of the Act deals with a decree passed for arrears of rent against a non-occupancy tenant. A similar application is provided for in Section 170 and the legislature clearly contemplates that this is a mode of execution for it uses the words "the land-holder may, in addition to any other mode of execution, apply to the Court which passed the decree for issue of a notice." A mode similar to the mode or proceeding under Section 168 is thus treated as a mode of execution.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. The answer to the question depends on whether the order under Section 168 of the Act can be said to be an order relating to the execution, discharge or satisfaction of the decree. It seems to us that the order dated August 8, 1958, was an order relating to the execution, discharge or satisfaction of the decree for rent, dated May 17, 1956.It seems to us that the whole scheme of the Section shows that the application under Section 168 of the Act is a step in the execution, discharge or satisfaction of thethis does not necessarily show that the order passed on the application is not one relating to the execution, discharge or satisfaction of the decree. As provided in Section 38 of the Civil Procedure Code "a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution."11. While Section 168 deals with a decree for arrears of rent against on exproprietary, an occupancy or hereditary tenant, Section 170 of the Act deals with a decree passed for arrears of rent against atenant. A similar application is provided for in Section 170 and the legislature clearly contemplates that this is a mode of execution for it uses the words "themay, in addition to any other mode of execution, apply to the Court which passed the decree for issue of a notice." A mode similar to the mode or proceeding under Section 168 is thus treated as a mode of execution.