B. Narasappa Vs. B. Govindappa

.....to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will.....ordern.d. patnaik, j.1. in execution of the mortgage decree obtained by the first respondent, the hypothecated property was brought to sale in ep no. 59/83 in o.s. no. 13/81 on the file of the district munsif's court, kalyandurg. the petitioner herein and another filed a claim petition -ea no. 72/85 contending that they are the purchasers of the property and that the property has been sold at a low price. they filed another application ea no. 157/88 to appoint a commissioner to inspect the land in question in order to ascertain its value. the learned district munsif dismissed the application, against which this revision is filed.2. the learned district munsif held that the provisions of order 26, rule 9 cpc are not made applicable to execution proceedings in view of section 141 c.p.c. and therefore, dismissed the petition.3. in this revision, the learned counsel for the petitioner has contended that though the petition under order 26, rule 9 cpc is not maintainable, it can be maintained under section 151 cpc under inherent powers of the court. but what the learned counsel for the respondent contends is that when once under section 141 cpc the provisions are not applicable to execution, it is not open to invoke section 151 cpc and appoint a commissioner which is not otherwise permissible under the provisions of the civil procedure code. i agree with the contention of the learned counsel for the respondent and also the order of the lower court that it is not open to appoint a commissioner in execution proceedings. therefore, there are no merits in the revision petition. the revision is dismissed. no costs.