Supreme Court of India
KASHI RAMversusRAKESH ARORA
- Citation
- 1987 INSC 213
- Decided
- 18 August 1987
- Disposal
- Appeal(s) allowed
- Bench
- SABYASACHI MUKHERJI
Holding
The eviction decree dated 15 October 1960 was time‑barred and could not be executed.
Summary
The Delhi Rent Controller ordered the eviction of tenant Kash! Ram in October 1960 on the ground of the landlord's bona‑fide requirement. The landlord's applications for permission to execute the order under Section 19 of the Slum Areas (Improvement and Clearance) Act, 1956 were dismissed in 1963, and a second application was only granted in 1979 after the Limitation Act, 1963 had come into force. The landlord then sought execution of the 1960 eviction order, but the Rent Controller, Tribunal and High Court held that the execution was not barred by limitation. The Supreme Court examined whether the limitation period began on the date of the decree or on the date permission under the Slum Act was obtained, and whether the earlier refusal created res judicata. It held that the decree became time‑barred on 14 October 1963 under Article 182 of the Indian Limitation Act, 1908, and that the later permission was irrelevant; consequently the execution petition was dismissed. The appeal was allowed, setting aside the High Court’s order.
Issues considered
- The decree for eviction passed in 1960 was executable after a delay of nearly two decades.
- Whether the limitation period for executing the decree is governed by the Indian Limitation Act, 1908 or the Limitation Act, 1963.
- When does the limitation period start – from the date of the decree or from the date of permission under the Slum Act?
- Whether the earlier refusal of permission under the Slum Act creates a bar of res judicata for the later application.
Legislation cited
- Code of Civil Procedures. Order 21 Rule 22, s. Section 151, s. Section 47
- Delhi Rent Control Act, 1958s. Section 42
- Limitation Act, 1908s. Article 182
- Limitation Act, 1963s. Article 136, s. Section 31(a)
- Slum Areas (Improvement and Clearance) Act, 1956s. Section 19
Subjects
evictionlimitation periodrent controlslum actexecution of decreeres judicatabona fide requirementstatutory limitation
Judgment
KASH! RAM
A
v.
RAKESH ARORA
AUGUST 18, 1987
[SABYASACHI MUKHARJI AND G.L. OZA, JJ.] B
Y Limitation Act, 1963: Article 136--Decree for execution-Period
of limitation-What is.
- Delhi Rent Control Act, 1958: Section 42-0rder of eviction-
Execution of-Period of limitation-What is-Permission under s. 19 C
of Slum Act 1956--0btaining and effect of.
The Rent Controller passed an order of eviction against the
appellant-tenant in October, 1960 on the ground of bona fide require-
ment of the landlord. The appeal against this order was dismissed by
the Rent Tribunal in October, 1961. The application oftbe respondent- D
landlord for permission to execute the order of eviction under Section
19 of the Slum Areas (Improvement of Clearance) Act, 1956 filed in
May, 1962 was dismissed by the Competent Authority in March, 1963.
In the meantime in January, 1964 the Limitation Act, 1963 came
. into operation. The respondent filed a second application in April, 1978 E
- • · for permission to execute the eviction order. Permissiun was granted in
June 1979.
In September, 1979 the respondent filed an application before the
Rent Controller for execution of eviction order. Objections under Section
47, Order 21Rule22 and Section 151 of the Code of Civil Procedure were F
filed on behalf of the tenant. The Rent Controller passed an order on
August 22, 1980 holding that the execution application was not barred
by limitation, but stayed the execution to decide the question of fresh
tenancy.
An appeal against this order was filed by the appellant before the G
Tribunal which held that the exeurtion was maintainable and was not
barred by limitation and that supplementary objections were not main-
tainable. The High Court confirmed this order by dismissing the second
appeal in limine.
In the appeal by the tenant before this Court, the question for H
1001
1002 SUPREME COURT REPORTS [1987] 3 S.C.R.
A consideration was whether the decree for eviction under the Rent Act
passed against the respondent was executable by the appellant or
whether the same had become barred by limitation or by res judicata
Allowing the appeal, this Court,
B HELD: 1.1 The claim to execute the order of evktion of the Rent ~
Controller dated 15th October, 1960 had become time-barred. [1009G]
1.2 It was not just, equitable and in good conscience to allow such
stale claims to be effectuated and that would be contrary to the princi-
c
ples of the Limitation Act, 1963 as well as the Indian Limitallion Act,
1908. [1009E·F] -
1.3 The execution of the decree for eviction passed on 15th of
October, 1960 became time-barred on 14th of October, 1960 under
Article 182 of the Indian Limitation Act, 1908 as it stood then. Under
s. 3l(a) of the 1963 Limitation Act, the provisions of the 1963 Limita·
D lion Act would not be availed of in respect of an application for which
the period of limitation had expired before the commencement of the
1963 Limitation Act, that it to say, 1.1.1964. But even if Article 136 of
the Limitation Act, 1963 was attracted it had become barred after 12
years from the date of the decree, i.e. 15th October, 1960. [1007G·H; 1008A)
E 1.4 There was no requirement of permission under the Slum Act '
and, as such, no impediment in putting the decree dated 15th October, • ..(, ,,...
1960 into execution. Second application for permission was tiled after a
lapse of more than 15 years; there was, in any event, no legal impediment
or legal bar which prevented the respondent from making the "PPlica· '
lion for permission to the competent authority under the Slum Act
F before. [10098-C]
1.5 The order of eviction passed by the Rent Controller as con·
firmed by the Tribunal in 1961 had become obsolete in 1978 when the
second attempt to execute the same was made. [!009E)
G Des Raj and another v. Noor Khan, A.I.R. 1985 Delhi 470; Ravi Y
Dutt v. Rattan Lal, [1984) 2 SCR 614 and Lala Baijnath Prosad and
others v. Nursingdas Guzrati, A.I.R. 1958 Calcutta 1 at p. 8, referred
to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 289
H of 1982.
KASHI RAM v. RAKESH ARORA [MUKHARJI, J.] 1003
From the Judgment and Order dated 17. 7. 198 l of the Delhi High A
Court in S.A.0. No. 249 of 198 l.
Soli J. Sorabji, Anil Kumar Gupta and Brij Bhushan for the
Appellant.
B.R. Agarwala for the Respondent. B
'r The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. This appeal by special leave
arises from the order of the High Court of Delhi dated 17th of July,
1981 dismissing the second appeal in limine against the order dated
2nd July, 1981 in RCA No. 871of1980 of the Rent Control Tribunal,
c
Delhi.
The order of eviction in this case on the ground of bona fule
requirement of the landlord was passed by the Rent Controller on or
about 15th of October, 1960. There was an appeal from the said order D
-'I of the Rent Controller and the appeal was dismissed on or about 9th
October, 1961 by the Rent Tribunal. In May 1962 the respondent filed
an application before the Competent Authority under section 19 of the
Slum Areas (Improvement of Clearance) Act, 1956 (hereinafter called
~ 'the Slum Act') for permission to execute the ~rder of eviction. . . E
r On or about 21st of March, 1963 the said apphcat1on was d1sm1s-
sed by the Competent Authority under the Slum Act. In the meantime
in January, 1964, the Limitation Act, 1963 came into operation. On
( the 19th of April, 1978, the respondent filed a second application
before the Competent Authority for permission to execute the order of
eviction. In June, 1979 permission was granted by the appropriate F
authority under the Slum Act. On 28th of August, 1979 the appeal
from the said Rent Controller was dismissed by the High Court.
Thereafer on or about 25th of September, 1979 the respondent herein
filed an application before the Rent Controller for execution of the
decree. Objections under section 47, Order 21Rule22 and section 151,
Y
Code of Civil Procedure were filed on behalf of the appellant. On 22nd G
of August, 1980 order was passed by the Rent Controller that the
execution application was not barred by limitation. Execution was
stayed, however, to decide the question of fresh tenancy.
There was an appeal under section 38 of the Delhi Rent Control
Act, 1958 filed by the appellant against the order of 22nd of Augµst, H
1004 SUPREME COURT REPORTS (19871 3 S.C.R.
._.\
A 1980. Thereafter the Tribunal in July 1981 orMred that the execution
was maintainable and was not barred by limitation and it wa> further
held that supplementary objections were not maintainable. On 17th of
July, 1981 the High Court dismissed in limine the second appeal from
the same as aforesaid.
~
B The question that falls for consideration is whether the decree
for eviction of the tenant under the Rent Act passed against the appel-
lant was executable by the respondent or whether the same had
become barred by limitation or by principles of res judicata. As
mentioned hereinbefore the decree-holder had filed an application
under section 19 of the Slum Act to obtain the permission from the
competent authority in the year 1962. The permission was not granted
c and the application was dismissed in the year 1963. The decree-holder
filed a fresh application seeking permission from the competent
authority in the year 1978. The permission was granted by the order
dated 18th of June, 1979. Thereafter on 25th September, 1979 the
decree-holder filed application seeking execution of the order of
D eviction.
The main objection raised by the appellant on the point of limita-
tion was firstly, that the decree in question was passed in 1960 and
therefore the decee-holder ought to have got it executed wi,thin 12
years by 1970. Secondly, it was contended that the application under
E section 19 of the Slum Act was filed in the month of March, 1975 but
the decree-holder did not take any steps for 12 years which expired
before 20th of March, 1975 to obtain permission from the Competent
Authority and from that aspect also the execution application was time
barred.
F There are two aspects of the matter which have to be borne in
mind, one was, when the decree became executable in the facts and
circumstances of the case and what would be the period applicable for
such execution. On the other aspect of the matter, it is necessary to
consider the question whether once permission under the Slum Act
was refused, does it create res judicata for the second application?
G
As mentioned hereinbefore the Rent Controller by the impug-
ned order held that the execution application was not barred by time
because in the opinion of the said Rent Controller till such time the
permission of the Competent Authority (Slums) was obtained, no
execution application could have been filed. The Trial Court further
H held that the amendment to section 19 of the Slum Act did not affect
KASH! RAM •· RAKESH ARORA [MUKHARJI, J.[ 1005
the pending execution application, or in other words, limitation wouta A
not have started running. However, the trial court held that in regard
to dispute about the creation of fresh tenancy the matter required
investigation and after holding that execution application was within
the time adjourned the case for evidence of the appellant and st.ayed
>- the execution during the pendency of the said objections. The said
objections have been overruled and these are not subject matter of this B
appeal.
Aggrieved by. the said order the appellant filed appeal before the
Rent Tribunal. The Tribunal noted the relevant provisions of the Slum
- Act. Section 19(1) as it stood before the amendment read as follows:
c
"19(1) Notwithstanding anything contained in any
other law for the time being in force, no person who has
obtained any decree or order for the eviction of a tenant
from any buildings in a slum area shall be entitled to exe-
cute such decree or order except with the previous permis-
sion in writing of the Competent Authority." D
Section 19(1) of the said Act now reads as follows:
"19(1) Notwithstanding anything contained in any
other law for the time being in force, no person shall except
with the previous permission in writing of the Competent E
Authority,
(a) institute, after the commencement of the Slum Areas
(Improvement and Clearance) Amendment Act, 1964, any
suit or proceeding for obtaining any decree or order for the
eviction of a tenant from any building or land in a slum F
area, or ............. "
It is not disputed that 12 years had expired when the execution
petition was filed from the date of the order of eviction but not from
the date the permission of the Competent Authority (Slums) was ob-
'y tained. The question, therefore, is whether the Indian Limitation Act G
1908 or Limitation Act, 1963 was applicable to the execution proceed-
ings and whether the limitation would start running from the date the
permission of the Competent Authority (Slums) was obtained.
So far as the first question about the applicability of the Limita-
tion Act, it is necessary to refer to section 42 of the Delhi Rent Control H
1006 SUPREME COURT REPORTS [1987) 3 S.C.R.
-~
Act, 1958 (hereinafter called 'the Act') which provided that En order
A
of eviction has to be executed like a decree of the Civil Court. The
provisions of the Code of Civil Procedure executing the decree are
made applicable by legal fiction recognised by virtue of section 42 of
the Act. In any case procedure of the Small Causes is adopted by the
Controllers under the provisions of the Act wherein also in execution -~
B the provisions of Code of Civil Procedure are applicable and as such
law of limitation would be attracted. The question is when the limita-
tion starts running. Once the limitation started running then unless the
statute comes to the rescue of a person the period would exp::re after
the efflux of time.
c Discussing certain authorities the Rent Tribunal held that the
-
limitation started from the date of the grant of the permission and as
such the execution application was well within time. The Tribunal
dismissed the appeal. The High Court summarily rejected the second
appeal.
D The question before us is whether this execution was barred by
limitation and secondly, whether there was a question of res judicata
because a prior application for permission by the Slums Clearance
Authority was rejected.
This particular point was considered by a learned single Judge of
E the Delhi High Court in Des Raj and another v. Noor Khan, (A.LR. -~
1985 Delhi 470, where the High Court held that under Article 136 of
the Limitation Act of 1963 a decree was executable within 12 years
from the date when it became executable, where the decree when
passed, was not enforceable no execution could be levied and hence
period of limitation would not commence. A decree of eviction passed
F under the Delhi and Ajmer Rent Control Act, 1952 on 19-2-60 accord-
ing to the said decision became executable only on 8-5-81 in the case
when permission under the Slum Act to execute it was obtained and
therefore the 12 years' period prescribed by Art. 136 Limitation Act,
1963 to execute the decree was held to have commenced only on 8-5-81
and not on 19-2-60.
G
The High Court followed a Full Bench decision of the Allahabad
High Court and a division bench decision of the Patna High Court. It
was further held that there was no bar under section 19 of the Slum Act
to a second or subsequent application seeking permission to execute
the order of eviction of tenant obtained under section 13(1)(e) of the
H Delhi and Ajmer Rent Control Act, 1952, in view of the changed
KASH! RAM v. RAKESH ARORA [MUKHARJI, J.] 1007
circumstances entitling grant of the permission being shown. A
This decision negates the two principal contentions urged in this
case on behalf of the appellant, namely there was no question of res
judicata in granting subsequent permission under the Slum Act if
) changed circumstances so warranted and secondly limitation would
start after the permission was granted. But the Delhi High Court had B
no occasion to consider the effect of the decision of this Court in Ravi
Dutt v. Rattan Lal, [1984] 2 SCR 614 where it was held that the rele-
vant provisions of the Delhi Rent Act for eviction on the ground of
bona fide requirement being in Chapter III A of the said Act had
overriding effect and the Slum Act was rendered inapplicable. If that is
the position then no permission under Slum Act was at all necessary in C
case of a decree for bona fide requirement. The said principle was
reiterated in two previous decisions. If that was so then the decree for
eviction having been passed on 15th October, 1960 and the application
for execution being filed on or about 25th September, 1979 was clearly
barred by limitation.
D
But the basic question in the instant case as we have noted from
the facts of the case is that the decree for eviction under the Rent Act
was passed in October, 1960 and the appeal against the same was
dismissed in October, 1961 by the Tribunal. Thereafter an application
was made in May, 1962 for permission under section 19 of the Slum
\... Act as it then stood was dismissed in March, 1963. Thereafter no E
action was taken upto 1978. When in 1978 action was initiated by filing
the second application under the Slum Act 12 years from the dismissal
of the application under the Slum Act had passed and the decree had
become barred. The decree had clearly become barred by limitation.
Article 136 of the Limitation Act, 1963 provides that a decree can be
executed within 12 years from the date on which it became executable. F
Decree passed by the Rent Controller even if it was not executable and
enforceable unless permission under the Slum Act had been taken,
which as noticed before was not the position in law the steps for such
permission had become barred. Steps for filing the application under
y the Slum Act were not taken, on refusal of the first application within
12 years thereof. It is apparent therefrom that the execution of the G
decree for eviction which was passed on 15th of October, 1960 became
time barred on 14th of October, 1963 under Article 182 of the Indian
Limitation Act, 1908 as it stood at that time. Under Section 31(a) of
the 1963 Limitation Act, the provisions of the 1963 Limitation Act
would not be availed of in respect of an application for which the
period of limitation had expired before the commencement of the 1963 H
1008 SUPREME COURT REPORTS [1987) 3 S.C.R.
A Limitation Act, that is to say, l. 1.64. But even if article 136 of the
Limitation Act, 1963 was attracted it had become barred after 12 years
from the date of the decree, i.e. 15th October, 1960.
In the Bench decision the Calcutta High Court in Lala Baijnath
Prasad and others v. Nursingdas Guzrati, A.LR. 1958 Calcutta lat ~
B p. 8). Chakravartti, C.J. speaking for the division bench observed:
"The right to enforce the decree, it appears to me, is
one thing; the possibility or practicability of exercising the
right is another. If by the terms of a decree, the decree-
•
holder has become entitled to execute it immediately, an
instant right to execute it has accrued to him contem-
c poraneously with the pas>'ng of the decree. Even iif he is ~·
prevented by some external circumstance from enforcing
the decree for some time, the right as a right, is neverthe-
less a present right. And what is a present right is not
merely the right declared by the decree but the right to
D enforce the decree, because if a decree declares certain ~
rights in favour of a person and there is nothing in the
decree itself by which they are declared with effect from a
future date or which postpones the right to execution to
some date in the future, there is no reason to say that a
present right to enforce the decree does not accrue to the
E decree-holder as soon as the decree is passed. It may· be _~
that, though entitled under the terms of the decree to
enforce it immediately, he cannot in fact do so for some
time by reason, say, of having to comply first with some
procedural requirement, as in the present case, but that
only means that it is not practicable for him yet to enforce
F the decree and not that a present right to enforce it has not
accrued."
The aforesaid principles, in our opinion, would be applicable to
the facts and circumstances of the present case. It has been emphasised
that there was no impediment or disability in the way of the respon- y
G dent in applying for permission from the Competent Authority under
the Slum Act. It was, however, urged that unless the circumstances
changed the permission under the Slum Act could not have been
granted but for the off chance of circumstances changing and tht,reby
giving a right to apply for permission under the Slum Act, a decree
cannot be kept in suspended animation. As we have noted before after
H the refusal of the application in March, 1963 unit! April, 1978 there
KASH! RAM v. RAKESH ARORA [MUKHARJI, J.J 1009
"' were no steps taken. This feature and this aspect, in our opinion, A
distinguishes this case from the other cases, quite apart from the fact
that in the light of the decision of this Court in Ravi Dutt v. Rattan Lal,
(supra) there was no requirement of permission under the Slum Act
and as such no impediment in putting the decree dated 15th October,
~ 1960 into execution. It has further to be borne in mind that respondent B
had filed a second application for permission after lapse of more than
15 years, there was, in any event, no legal impediment or legal bar
'r which prevented the respondent from making the application for
permission to the competent authority under the Slum Act before. It
was argued that the respondent did not apply because there was no
- change of circumstances which would entitle the respondent to obtain
permission. It was argued that the second application was made in c
'1 1978 and at that time the Jaw under the Slum Act had altered as we
have noticed. It appears to us that in this case in any event no permis-
sion was required to execute the decree. Therefore the second applica-
tion was unnecessary. In that view of the matter in this case it is not
necessary to examine whether a second application Jay or not. We are
~ inclined to the view that an application might lie if it was within the D
period of limitation. We need not decide in this case the question of res
judicata.
It is clear that the order of eviction passed by the Rent Controller
-
as confirmed by the Tribunal in 1961 had become obsolete in 1978
... when the second attempt to execute the same was made . E
In that view of the matter we are of the opinion that it was not
just, equitable and in good conscience to allow such stale claims to.be
r effectuated and that would be contrary to the principles of the Limita-
tion Act, 1963 as well as Indian Limitation Act, 1908.
F
In the premises the order dismissing the appeal from the Rent
Tribunal must be set aside and the application made for execution
must be dismissed. It must be held that the claim to execute the order
of eviction of the Rent Controller in this case dated 15th October, 1960
y had become time barred. The appeal is allowed and the judgment and
order of the High Court are set aside. In the facts and circumstances of G
the case, however, there will be no order as to costs.
N.P.V. Appeal allowed.
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