P.K. Tripathy, J.
1 . This Civil Revision is directed against the Judgment of the Additional District Judge, Sambalpur passed on 11.3.2003 in Misc. Appeal No. 18/1 of 1998-2001.
2. Admittedly, petitioner was the tenant opposite party in H.R. Case No. 22 of 1987 of the Court of House Rent Controller-cum-SDJM Sambalpur. Opposite Party was the land lady-cum-applicant, in that H.R.C. proceeding. Her claim for eviction was considered and allowed by learned SDJM along with a direction for payment of the arrear house rents amounting to Rs. 9,600/- with the stipulation to get that order executed if the tenant fails to comply with the same. The applicant in that H.R.C. proceeding, thus, filed Execution Case No. 31 of 1996 in the Court of Civil Judge (Junior Division), Sambalpur, to execute the aforesaid order of the House Rent Controller. The tenant/petitioner filed an application under Section 47 of the Code of Civil Procedure, 1908, (in short 'the Code'); challenging to executability of the order of the House Rent Controller, inter alia on the grounds that the order for payment of arrear House Rent is without jurisdiction of the House Rent Controller and therefore not executable and that relating to the suit house a civil suit vide Title Suit No. 50 of 1986 is pending in the Court of Civil Judge (Junior Division), Sambalpur and therefore the order of eviction is not executable. The decree-holder resisted to that prayer.
3. After hearing the parties, learned Civil Judge (Junior Division), Sambalpur rejected the application under Section 47 of the Code, on the ground that the Executing Court cannot go behind the decree. As against that order the tenant preferred the appeal, which was disposed of by learned Additional District Judge as per the impugned Judgment delivered on 11.3.2003 in the Misc. Appeal No. 18/1 of 1998-2001. It is noted by learned Additional District Judge that:
'While considering the respective contentions of the parties I am to observe that the appellant has argued this appeal before me in person. During such personal hearing he raised only one point and that point is that he spent Rs. 48,000/- towards repairs of the house from which is eviction was sought and till that amount is adjusted he shall be permitted to continue therein. This argument has absolutely no foundation in his proceeding under Section 47, CPC and that cannot be entertained for consideration at this appellate stage. He did not pursue any other ground in the appeal.'
On analysis of the provision of law in Section 7 of the House Rent Control Act, 1967 learned Additional District Judge, recorded the finding that the House Rent Controller had no jurisdiction to pass an order (decree) for realisation of the arrear house rent of Rs. 9,600/- and accordingly held that the executing Court should have dismissed the execution proceeding for such a relief. Learned Additional District Judge, however, held that the Execution Proceeding is maintainable relating to the order of eviction notwithstanding pendency of the suit by others.
4. While pressing this revision as against the impugned order, the following two points was pressed into service; viz:
(i) after Amendment of the Code in 1976, the order passed under Section 47 is no more appealable and
(ii) the order of eviction is not executable when a suit is pending and the plaintiffs in that suit are not party to the Execution Proceeding.
5. Learned counsel for the opposite party argued that this Civil Revision has been filed as against the Judgment of the Appellate Court in the above noted Misc. Appeal. On the basis of the position of law, if the impugned Judgment is set aside on the ground of lack of jurisdiction of the Appellate Court, then that automatically does not entitle the petitioner to challenge the order in rejecting the application under Section 47 by the learned Civil Judge in the above noted execution proceeding. Apart from that, he argued, when the petitioner approached the District Court invoking the appellate jurisdiction, it is not open to him to criticise that Judgment on the ground of lack of jurisdiction. He also argued that order of eviction passed by the House Rent Controller is legally executable until a contrary decision is taken by the Competent Court of jurisdiction. Accordingly, he argued to dismiss the revision.
6. There was amendment to Section 2(2) of the Code by Act 104 of 1976. In view of that amendment, an adjudication on the application under 'Section 47 of the Code has been excluded from the meaning of the term 'decree'. Therefore, an order passed under Section 47 is no more a decree to be appealable in accordance with provision in Section 96 of the Code. It also does not come within the category of an appealable order, be it under Section 104 or Order 43, Rule 1 of the Code. Therefore, an order passed in disposing of an application under Section 47 of the Code is not appealable. This aspect was considered against non-maintainability of appeal but maintainability of a Revision under Section 115 of the Code, in the case of Mst. Sarabai Agarwalla and Ors. v. Haradhan Mohapatra and Anr., AIR 1982 Orissa 9. That view was also confirmed by a Division Bench of this Court in the case of Dhusasan Nayak v. Dhadi Nayak and Ors., AIR 1983 Orissa 127. Thus, the legal position relating to non-appealability of an order passed under Section 47 of the Code is no more res Integra.
7. The position of law as in Section 7 of the House Rent Control Act, 1967 is clear enough in not investing or authorising jurisdiction on the House Rent Controller to pass order for realisation of arrear house rent or to quantify the same. In the case of Srimati Dei alias Dasi and Anr. v. Bidyadhar Pradhan and Ors., Vol. XXXVI (1971) CLT. 456, a Division Bench of this High Court has settled the ratio that:
'10. Arrears of rent are to be recovered only through Civil Court and not through the Controller. But eviction can be permitted by the Controller if it is found that the tenant is in arrears. The Controller cannot be utilised as a machinery for recovery of arrears of rent by a subterfuge that arrears are to be determined and that the rent must be paid before the tenant is permitted to contest the proceeding.'
8. When the position of law both on the jurisdiction of the Appellate Court and the House Rent Controller stand thus, this Court is to examine the respective contentions raised by the parties.
9. It is the settled position of law that unless the statute provides a forum, mere act of consent of the parties does not confer jurisdiction on a Court. Therefore, even if the petitioner invoked the appellate jurisdiction of the District Judge the position of law as discussed above, makes it clear that the District Judge had no jurisdiction to entertain an appeal, as against an order passed on an application under Section 47 of the Code. Thus, the impugned order of learned Additional District Judge could have been declared to be without jurisdiction. That is not declared so because order passed in disposing of a proceeding under Section 47 of the Code is revisable and on the date of the appeal in 1998 District Judge was having the jurisdiction to entertain application under Section 115 of the Code in view of the Orissa Amendment of Section 115 vide Orissa Act 26 of 1991. Therefore, the appeal can be regarded as a Revision under Section 115 of the Code and the District Judge which also includes the Additional District Judge had the jurisdiction to entertain a Civil Revision as against the impugned order. It is only the nomenclature of the litigation as Misc. Appeal that bounces off the jurisdiction of the District Judge but if that is regarded as an application under Section 115 of the Code, then the dispute remains within the competency of the District Judge to consider the same. Procedural hurdles in the given case may not be an impediment to refuse just remedy to the litigants. Therefore, when learned Additional District Judge while hearing the appeal had the jurisdiction to entertain a Civil Revision under Section 115 of the Code, this Court regards the same as an order under Section 115 of the Code. In that respect, petitioner cannot have any grievance in as much as he invoked the jurisdiction of the District Judge as against the order of rejection of his application under Section 47 of the Code.
10. Once that be so, or otherwise treating the present application under Section 115 of the Code to be against the order in rejecting the application under Section 47 of the Code, in either case, this Court finds that the approach and analysis of law by learned Additional District Judge is in the line of the statutory provision and above noted ratio laid down by this Court. Under such circumstance, this Court reiterates that the order passed by the House Rent Controller for realisation of arrear house rent of Rs. 9,600/- is without jurisdiction and therefore a nullity and not executable. To that extent application under Section 47 is allowed. So far as the relief of recovery of possession ordered by the House Rent Controller that order is executable and to that extent application under Section 47 of the Code is rejected.
11. Incidentally, petitioner argued about extent of jurisdiction of a receiver to seek for eviction of a tenant. This Court does not find any reason to discuss or deliberate on that issue in as much as that was not a dispute ever canvassed and decided in the House Rent Control Proceeding or before the Lower Court.
For the reasons indicated above, this Court does not find any reason to take a different view than the view expressed by learned Additional District Judge, Sambalpur and accordingly, the Civil Revision is disposed of without interfering with the same.