JUDGMENT
Lakshmikanta Jha, C.J.
1. This application in revision is by a landlady who obtained an order of eviction against one Ramdas under the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act III of 1947). I think on merits the application must fail.
2. The petitioner, treating Ramdas as her
tenant from month to month in respect of a
building, started a proceeding under Section 11(1)
(a) of the Act for his eviction for non-payment
of rent. On 12-2-1947, a compromise petition
was filed by the parties to the effect that the
tenant be allowed to remain in occupation till
13-11-1947, and that he would vacate the
house on 14-11-1947, failing which he may be
forcibly evicted. Ramdas did not vacate the
house on the specified date and thereupon on
19-12-1947, the petitioner filed a petition before
the Controller for his eviction, and the Con
troller having found that rent had not been
paid for the year 1947 ordered him to vacate
the house by 2-5-1948, and put the petitioner
in possession. Ramdas, however, did not com
ply with the order and thereupon under the
provisions of Section 17 of the Act the petitioner
commenced an execution proceeding in the
court of the Munsif, 1st court, Gaya, seeking,
his eviction. During the pendency of the peti
tioner’s application for execution, the opposite
party, Satruhan, the son of Ramdas, filed a
suit for declaration of his title and applied for
a temporary injunction under the provisions of Order 39, Rule 1, and though an ‘ad interim’ injunction
was granted the order was vacated by the
learned Munsif on 25-4-1949. On 26-4-1949.
Satruhan preferred a claim in respect of the
house as a tenant from month to month un
der Order 21, Rule 58, Civil P. C., in the execution
proceeding pending in the Munsiff’s Court and
alleged that Ramdas, his father, was not the
tenant thereof. The point for decision before
the executing court was whether Satruhan was
in possession of the house in dispute on his own
account. Both parties led evidence on this
point, and the learned Munsif, on a considera
tion of the evidence, oral and documentary,
was satisfied that Satruhan was in possession
on his own account and not on account of his
father, Ramdas. In deciding this question the
learned Munsif did not act with material ir
regularity in the exercise of his jurisdiction,
nor did he assume jurisdiction which he did
not possess, because under Section 17 of the Act he
was empowered to execute the order of the
Controller. Therefore, in the exercise of our
revisional jurisdiction we cannot interfere with
the order passed by him.
3. It is, however, contended that the learned Munsif, while executing the order of the Controller under the provisions of the special enactment, had no power to entertain a claim preferred under the provisions of Order 21, Rule 58, Civil P. C. I do not think there is any substance in this contention. The Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. which has been enacted to regulate the letting of buildings and the rent of such buildings to prevent unreasonable evictions of tenants therefrom, sets up a complete machinery for the investigation of those matters which fall within the jurisdiction of the Controller under the Act. Section 11 of the Act provides, ‘inter alia’, that a tenant from month to month may ba evicted from a building on an application by the landlord for non-payment of rent. In this particular case the petitioner did file an application for eviction of Ramdas on the ground that he was a tenant from month to month and that he did not pay rent regularly. The Controller passed an order on 19-12-1947, as already stated, asking Ramdas to vacate the house by a certain date. His order is final (subject to an appeal to the Divisional Commissioner as provided in Section 18) and is executable as a civil court decree under the provisions of Section 17 of the Act. But as the order of the Controller is to be executable as if it were a civil court decree, the relevant provisions of Order 21 of the Code relating to execution of decrees and orders must be held to be applicable in the absence of any provision in the Act barring the application thereof. . It was, therefore, in my opinion, within the power of the Munsif as executing court to decide the claim preferred by Satruhan, as the dispute falls within the provisions of Order 21, Rule 58, as amended by this Court, which runs as follows :
“58. (1) When any claim is preferred to any property, the subject-matter of execution proceedings, or any objection is made to the attachment thereof, on the ground that the applicant has an interest therein which is not bound under the decree, or that such property is not liable to attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and. in all other respects, as if he was a party to the suit :
Provided that no such investigation shall be made where the Court considers that the claim or objection was designedly or unnecessarily delayed.
(2) Where the property to which the claim or objection applies has been advertised for sale, the Court ordering the sale may in its discretion make an order postponing the delivery of the property after the sale pending the investigation of the claim or objection. And in no case shall the sale become absolute until the claim or objection has been decided.”
The remedy of the petitioner is to institute a suit under Order 21, Rule 63, to establish her case that Ramdas is her tenant or to treat Satruhan as her tenant and go back to the Controller to seek his eviction. In the absence of such a step the order of the learned Munsif is conclusive and Satruhan must be deemed to be the tenant under her in respect of the building. If the contention of the petitioner be right that the executing court cannot entertain an objection under Order 21, Rule 58, Civil P. C., it would be open to any landlord to start a collusive proceeding before the Controller treating a creature of his own as a tenant, and secure the eviction of a person who may be a ‘bona fide’ tenant from month to month on his own account by executing the Controller’s order in the civil court. The Act, in my opinion, must be held to have avoided such a contingency by not barring the application of Order 21. Therefore, this argument of the learned counsel must also fail.
4. On consideration of the points raised before us, I am of the opinion that there is no substance in the contentions raised on behalf of the petitioner. The application must, therefore, be dismissed, but, in the circumstances, without costs.
Reubkn, J.
5. I agree that the Munsif had jurisdiction to enterlain a claim under Order ‘ 21. Rule 58, Civil P. C. and that the application must be dismissed on the ground that the Munsif’s order is within his jurisdiction. I
must observe, however, that on the merits I am not at all happy about his judgment.
6. Satruhan’s father entered into a compromise with the applicant permitting him to remain in the house till 13-11-1947. In his petition informing the House Controller about the compromise he described as his the timber lying in the house in question. Satruhan, who is apparently joint with his father, only appeared on the scene when his father failed to vacate the house in accordance with the compromise and when the landlady, having obtained an eviction order, tried to enforce it by execution in the Munsif’s Court.
7. Satruhan and his father are residents of Alipur in the jurisdiction of Tekari police station. The house in question is at Gaya. According to Satruhan’s story he took this house on rent when he was fifteen years old and has been carrying on the timber business in it since the last fourteen years. During this time he is on bad terms with his father. Yet his own witness deposes that whenever the father goes to Gaya he stays in the shop and that he has seen the father six to eight times paying rent for the shop.
8. It was within the jurisdiction of the
Munsif to accept the story of Satruhan but he
should have dealt ‘inter alia’ with the facts I
have mentioned and he ought to have given
fuller reasons for his decision than he has
done.