Case Note & Summary
This appeal by special leave arose from a dispute concerning the execution of a rent decree under the U.P. Tenancy Act, 1939. The appellant, Balak Singh, was a tenant of the respondent Waqf. The respondent obtained a decree for arrears of rent against the appellant but encountered obstacles in its execution via attachment of crops, as the appellant had removed them. Subsequently, the respondent filed an application under Section 168 of the Act seeking payment of the decretal amount and, in default, the appellant’s ejectment. The appellant raised various objections, including lack of proper notice and the applicant’s locus standi. After a series of proceedings, the Assistant Collector overruled the objections and confirmed the order for possession. The appellant appealed to the District Judge, who allowed the appeal, inter alia, because proper notice had not been served. On further appeal by the respondent, the High Court held that the order under Section 168 was passed in the original suit, not in execution, and therefore no appeal lay to the District Judge under Section 271(2) of the Act. The appellant then approached the Supreme Court by special leave. The core legal issue before the Supreme Court was whether an order passed under Section 168 of the U.P. Tenancy Act, 1939 is an order relating to the execution, discharge or satisfaction of a decree, and consequently, whether an appeal against such an order is competent under Section 271(2) of the Act before the District Judge. The appellant argued that the application under Section 168 is essentially a mode of execution and the order passed thereunder relates to execution, making it appealable. The respondent contended that the application is made to the court which passed the decree and the proceeding is in the nature of the original suit, not execution. The Court analysed the scheme of Section 168, which provides that when a decree for arrears of rent against certain categories of tenants remains unsatisfied for one year despite other modes of execution, the landholder may apply to the court which passed the decree for a notice to the tenant to pay or face ejectment. The Court observed that the entire scheme indicates that the application is a step towards the satisfaction of the decree. The notice and subsequent ejectment are consequences of non-payment, aimed at realising the decretal amount. The fact that the application is to the court which passed the decree does not detract from its character as an execution proceeding, because under Section 38 of the Code of Civil Procedure, 1908, a decree may be executed by the court which passed it. The Court further drew support from Section 170 of the Act, which deals with similar applications for arrears of rent against non-occupancy tenants and expressly uses the phrase “in addition to any other mode of execution,” clearly treating the proceeding as a mode of execution. By analogy, the proceeding under Section 168 is also a mode of execution. Thus, the order passed under Section 168 is an order relating to the execution, discharge or satisfaction of the decree, and an appeal lies under Section 271(2) of the Act. The High Court erred in holding otherwise. Consequently, the Supreme Court allowed the appeal, set aside the High Court’s order, and remitted the case to the High Court to dispose of the other questions arising in the appeal. The appellant was awarded costs.
Headnote
A) Execution of Decrees - Appealability of Orders - Order under Section 168 of U.P. Tenancy Act, 1939 is an order relating to execution, discharge or satisfaction of decree and hence appealable under Section 271(2) - U.P. Tenancy Act, 1939, Sections 168, 170, 271(2); Code of Civil Procedure, 1908, Section 38 - The Court examined the scheme of Section 168 and held that the application under that section is a step in execution, discharge or satisfaction of a decree for arrears of rent. The fact that the application is made to the court which passed the decree does not change its character as an order in execution because under Section 38 CPC a decree may be executed by the court which passed it. The Court further noted that Section 170 of the Act, dealing with similar applications against non-occupancy tenants, expressly treats the proceeding as a mode of execution. Thus, the High Court erred in holding that no appeal lay to the District Judge under Section 271(2). In the result, the Supreme Court set aside the High Court's order and remitted the case for disposal on other grounds. (Paras 8-11)
Issue of Consideration
Whether an order passed under Section 168 of the U.P. Tenancy Act, 1939 is an order relating to the execution, discharge or satisfaction of a decree, and consequently whether an appeal lies under Section 271(2) of the Act to the District Judge.
Final Decision
Appeal allowed; High Court judgment set aside; case remitted to High Court for disposal on other questions; costs to appellant.
Law Points
- Legal points not extracted
- Application under section 168 is a step in execution
- discharge or satisfaction of decree
- Order under section 168 is an order relating to execution
- Hence appealable under section 271(2)
- Section 170 provides similar application as mode of execution
- Court passing decree does not prevent order from being in execution under CPC section 38
