Anumalasetty Subbadravalli Tayaramma Vs. Nagalla Mallikarjuna Rao - Court Judgment

Excerpt:
- orderk.b. siddappa, j.1. this revision is filed against the order passed in e.p. no. /91 in r.c.c. no. 20/88, on the file of principal district munsif, ongole.2. the execution petition was filed for recovery of arrears of rent due from the respondent-tenant. the office took objection as to the maintainability of the execution petition. the objection is that without a decree to recover the arrears of rent, the arrears cannot be recovered basing on the order of eviction passed under section 11(4) of the rent control act. the lower court after considering the relevant provisions upheld the objection and observed that it is open to the landlord to file a suit for recovery of arrears of rent if it is within time. consequently the execution petition was rejected.3. aggrieved by the said order the present revision is filed.4. the learned counsel appearing for the revision petitioner submitted that there is a direction under section 11(1) to deposit the rent during the pendency of the eviction proceedings. if the rent is not deposited within time and in the manner prescribed, the tenant is liable to be evicted and the landlord was to be given possession of the building by virtue of section 11(4). the order under section 11(4) is executable order. when the rents are not deposited by the tenant, the landlord has to be put in possession of the building. the legislative intent is to give effect to the order and e.p. is maintainable for eviction of the tenant. according to him this principle can be extended by necessary implication for recovering arrears of rent directed to be deposited under section 11(1) and (2) of the rent control act, and no separate suit is necessary as directed by the lower court.5. in support of his contention he relied upon the judgment of this court in t. venkntesam v. akula krishnaiah, 1966(2)an. w.k. 245. in this case it was held that the order passed under section 11(4) can be enforced in the same way as any other order passed under the act and that neither section 10 nor the omission in section 15 makes an order passed under section 11(4) incapable of being executed by the rent controller. it is an order passed validly under section 11(4) of the act and the power to pass such an order carries with it the necessary and extended powers to execute it, and therefore the rent controller was competent and had jurisdiction to execute that order in the manner in which the order of eviction was passed under section 10 or 12 or 13, and executed.6. there cannot be-any doubt with regard to the principles laid down in the above judgment. but this principle cannot be extended to the extent of recovery of arrears of rent directed to be deposited by the order passed under section 11(1) and (2) of the rent control act. there is no decree in respect of arrears of rent so that the landlord could execute by filing the e.p. and recover the same. unless a decree is there in a separate suit determining the arrears that cannot be executed under the garb of the powers under section 11(4) of the act. the principle laid down in the above judgment certainly cannot be extended for recovery of arrears of rent. the landlord has to necessarily file a suit for recovery of arrears of rent and then only he can file execution petition to recover the amount. it is rightly held so by the lower court. there are no grounds to interfere with the order under revision.7. hence, the revision is dismissed and. in the circumstances without costs.

Judgment:
ORDER

K.B. Siddappa, J.

1. This Revision is filed against the order passed in E.P. No. /91 in R.C.C. No. 20/88, on the file of Principal District Munsif, Ongole.

2. The Execution Petition was filed for recovery of arrears of rent due from the respondent-tenant. The office took objection as to the maintainability of the Execution Petition. The objection is that without a decree to recover the arrears of rent, the arrears cannot be recovered basing on the order of eviction passed under Section 11(4) of the Rent Control Act. The lower Court after considering the relevant provisions upheld the objection and observed that it is open to the landlord to file a suit for recovery of arrears of rent if it is within time. Consequently the Execution Petition was rejected.

3. Aggrieved by the said order the present Revision is filed.

4. The learned Counsel appearing for the Revision petitioner submitted that there is a direction under Section 11(1) to deposit the rent during the pendency of the eviction proceedings. If the rent is not deposited within time and in the manner prescribed, the tenant is liable to be evicted and the landlord was to be given possession of the building by virtue of Section 11(4). The order under Section 11(4) is executable order. When the rents are not deposited by the tenant, the landlord has to be put in possession of the building. The legislative intent is to give effect to the order and E.P. is maintainable for eviction of the tenant. According to him this principle can be extended by necessary implication for recovering arrears of rent directed to be deposited under Section 11(1) and (2) of the Rent Control Act, and no separate suit is necessary as directed by the lower Court.

5. In support of his contention he relied upon the judgment of this Court in T. Venkntesam v. Akula Krishnaiah, 1966(2)An. W.K. 245. In this case it was held that the order passed under Section 11(4) can be enforced in the same way as any other order passed under the Act and that neither Section 10 nor the omission in Section 15 makes an order passed under Section 11(4) incapable of being executed by the Rent Controller. It is an order passed validly under Section 11(4) of the Act and the power to pass such an order carries with it the necessary and extended powers to execute it, and therefore the Rent Controller was competent and had jurisdiction to execute that order in the manner in which the order of eviction was passed under Section 10 or 12 or 13, and executed.

6. There cannot be-any doubt with regard to the principles laid down in the above judgment. But this principle cannot be extended to the extent of recovery of arrears of rent directed to be deposited by the order passed under Section 11(1) and (2) of the Rent Control Act. There is no decree in respect of arrears of rent so that the landlord could execute by filing the E.P. and recover the same. Unless a decree is there in a separate suit determining the arrears that cannot be executed under the garb of the powers under Section 11(4) of the Act. The principle laid down in the above judgment certainly cannot be extended for recovery of arrears of rent. The landlord has to necessarily file a suit for recovery of arrears of rent and then only he can file Execution Petition to recover the amount. It is rightly held so by the lower Court. There are no grounds to interfere with the order under Revision.

7. Hence, the Revision is dismissed and. in the circumstances without costs.