JUDGMENT
M.S. Ratnaparkhi, J.
1. The applicant plaintiff obtained a decree for eviction against the respondent/non-applicant in Small Cause Suit No. 458/82. This decree was challenged before the District Judge vide Civil Appeal No. 254/85. The decree, inasmuch as it related to eviction was stayed by the District Court. However, this stay order came to be vacated on 15-10-1985. On 17-10-1985, the plaintiff filed an execution for possession. Possession warrant was issued and the Possession was delivered on 30-10-1985. The execution was accordingly disposed of.
2. On 1-11-1985, the judgment debtor applied for restoration of the premises under section 144 of Code of Civil Procedure. The Executing Court held that the decree put in execution being void, no possession could have been delivered. But as it was already delivered, it directed restitution not under section 144 of Code of Civil Procedure, but under section 151 of Code of Civil Procedure. The observations of the Court were that it was the duty of the Court to take care that the act of the Court does not cause any injury to parties. The application for restitution was allowed. The plaintiff was directed to put the defendant in possession of the house within six months. This order was passed on 1-1-1987.
3. It is this order which has been the subject matter of challenge in this revision. Mr. De, the learned advocate for the petitioner strenuously urged before me that the decree passed by the trial Court in Small Cause Suit No. 458/82 had become final, inasmuch as the appeal before the District Court was withdrawn by the defendant. As far as the finality is concerned, there is hardly anything to say against it. Admittedly, the decree was based on the relationship between the landlord and the tenant and the exemption given by the State Government to the premises constructed after 1-1-1951, under Clause 30 of the C.P. & Berar Letting of Houses and Rent Control Order. As these premises were exempted from the operation of the Rent Control Order, the plaintiff instituted a suit for eviction before the Small Causes Court without approaching the Rent Controller. In Prabhakar Tanbaji Rokde v. State and others, 1985 Mah.L.J. 548, this Court adjudicated that the Notification issued under Clause 30 of the Rent Control Order was ultra vires, as it was violative of Article 14 of the Constitution. With the quashing of this exemption, the permission of Rent Controller became a condition precedent for instituting a suit for eviction against a tenant. This was the legal position which prevailed on 15-10-1985.
4. The factual position which is no longer in dispute is that, the adjudication reported in 1985 Mah.L.J. (supra) came on 19-6-1985. With this adjudication, all the decrees for eviction without taking recourse to the Rent Controller became void. The decree in Small Cause Suit No. 408/82 also became void. It is this decree which was put in execution on 15-10-1985 and it is this trunketed decree which the Court executed by issuing the warrant of possession. The defendant/judgment debtor was dispossessed and the plaintiff obtained possession of the suit property under such decree on 17-10-1985. Mr. De, the learned advocate for the petitioner invited my attention to the penultimate paragraph of the judgment of the judgment in 1985 Mah.L.J. 548 (supra) and particularly the reservations made by this Court in para 12. This Court observed :
“We, however, make it clear that this declaration and decision would not affect the validity of any proceedings in which the decree for eviction has become final and the landlord has already taken possession of the building in question pursuant thereto.”
Relying on these directions or observations, Mr. De canvassed before me that the decree had already become final as the appeal against this was withdrawn, and therefore, it was executable. It is difficult to agree with Mr. De on this point, because what has been saved by this Court in para 12 of the judgment is not the decrees which have attained finality. But in addition to attaining the finality, one more characteristic was added to it and that is the landlord has already taken possession of the building in question pursuant thereto. It is only such decrees which satisfy these two penculiarities were saved. In the present case, though the decree had attained finality (in the popular sense of the term) it was not executed till the decision in 1985 Mh.L.J. 548. It was put in execution only on 15-10-1985 i.e. long after this adjudication. On the date when the decision was pronounced, the decree had satisfied only one qualification of finality, but it lacked in the other qualifications. Thus, the effect of the adjudication in 1985 Mah.L.J. 548 was that, this decree was not saved.
5. In fact, the Executing Court could have scrutinised this point before issuing the warrant. Perhaps this point was not averred before the Court when the Court directed the execution of the warrant. But the fact remains, that the warrant was issued for executing a decree, which was void in view of the adjudication in 1985 Mah.L.J. 548. Possession was delivered to the decree holder on the basis of void decree. It is this point which the Court had to consider while dealing with the application for restitution. The judgment debtor went before the Court with a prayer for restitution. The Court found that restitution was not possible within the four corners of section 144 of Civil Procedure Code, as the decree was neither a varied, nor modified. However, the Court took the view that by its action in executing the decree an injustice has been done to the judgment debtor, and therefore, in the interest of justice it exercised its inherent powers under section 151 of Code of Civil Procedure in directing the restitution. According to me, the stand taken by the Court was quite correct. When the decree holder enjoyed the benefits flowing from the void decree, and when a wrong was done to the judgment debtor by execution of that void decree, it was not only proper for the Court, but it was the duty of the Court to remove that wrong and put the parties in the same position which they were occupying previously.
6. In these circumstances, I think that the orders passed by the Executing Court was quite proper and it needs no interference at the hands of this Court, with the result that the revision is dismissed. Rule is discharged. There shall, however, be no order as to costs.