Case: B.V. Patankar &amp; Others Vs. C.G. Sastry

2. 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. 2.655/- as past mesne profits and future mesne profits at Rs. 250/- per mesne 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 1943. 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, i.e., May 1, 1955. On August 13, 1951, the respondent made an application in the Executing Court, the District Judge, under Ss. 47, 144 and 151 of theCode of Civil Procedurefor 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 moveable which were in the house at the time the 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 Order. 1948, which was in operation on the date of eviction. The High Court having refused to give a certificate under Art. 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.

Reasoning: 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 Transfer of Property Act 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 S. 1 for the words "Bombay, Punjab or Delhi" the words "that the said States" were substituted. Therefore the effect of the Part B State (Laws) Act merely was that qua the Transfer of Property Act, 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 Transfer of Property Act 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 Mysore Rent Control Act of 1951 which received the Presidents 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 Art. 372 of the Constitution and remained unaffected by Art. 251. The contention raised that ignoring Ss. 9(1) 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.