LexBALAK SINGH versus WAQF ALEE ALLAH KAYAM KARDA AHMAD ULLAH KHAN SAHEB
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BALAK SINGH ...... v. WAQF ALEE AILAH KAYAM KARDA AHMAD UILAll KllANSAHEB March 20, 1969 [S. M. Soou, R. S. BACHAWAT AND K. S. liBGDE, 11.] U.P. Tenancy Act 1939, a. 168 and 271(2)--0rder under 1. 168 whether an order in execution of a decree-Whether appeakzb/e to District l"'11e under 1. 271 (2). 1be appellant wu tho tenant of the respondent Wald. The respondent obtained a decree for arrears of rent agaimt the appellant but failed to cucute it by attachment of crops aa they had already been removed by the appeiJaoL Tho respondent then made an application under a. 168 of the OJ>. Tenancy Act, 1939 prayina that the amount of tho decree be aot paid under that section or, in default of payment, the appellant may be clitpoHess"". Objections were raiJed by tho appellant to this application but they were ultimately rejected by the Assistant Collector. The District Judge lillowed the appeal against the .Assistant Collector's order. lo further appeal by the respondent, the High Coun held that procecdiop under s. 168 were proceedings in the origioa) suit and not in execution and thue- fore no appeal lay to the District Jucfse under s. 271(2) of the Act. Against the High Court's decision, the appellant, by special leave, came to this Court. HELD : An examination of the scheme of a. 168 shows that an appli- caiion under that aection is a step in the execution. discharge, or satisfaction of the decree. The fact that the application la to the court which pused the decree does not necessarily show that the order passed on the application la not one rclatin11 to the execution, discharge or satisfaction of the decree, for under s. 38 of the Civil Procedure Code a decree may be executed either by the Coun which paS$ed it, or by the coun to which it is sent for execution. [SOA-BJ B c D While s. 168 doels with a decree for arrears of root against an ex.pro- prlelary, an occupancy or hereditary tenant, s. 170 of the Act deals with a clecree puaed for am.n of rent aaainst a non-<lCCUpancy tenant A similar application la provided tor in s. 170 and the legislature clearly con.. r templata that this is a mode of encution for it llMI tho wordl "tho land- holder may, in addition to- any Olher mode of m:ecution, apply to Ibo court wblch paaeed the decne for lalUo of a notice." A mode limilar to tho mode or proceedins under 1. 168 ii thus treated u a mode of execution. (501)..B] 1be HlJb Court therefore orrecl in holdin& that the appeal to the Dis- trict 1udae wu Incompetent on tho around that tho order under 1. 168 wu not Oll8 rolatlni to tho Oltecution, Cllscbarp or satisfaction of tho decree. G [50 D-BJ CivIL APPELLATE ]Ull!SDICTION : Civil Appeal No. 706 of 1966. Appeal by special leave from the judgment and decree dated January 7, 1965 of the Allahabad High Court mF.A.F.O. No. 254 of 1960. 8 S. P. Sinhp, I. P. Goyal and S. P. Singh, for the appellllOlt. C. B. Agarwqla and S. Shaukat Hussain, for the respondent. • BALAK SINGH V. AHMAD ULLAH (Sikri, /.) 47 A The Judgment of the Court was delivered by Sikri, J. The only question involved in this appeal by special leave is whether an appeal lies against an crder passed under s. 168 of the U.P. Tenancy Act, 1939, hereinafter referred to as the Act. Before we deal this point it _is necessary to give a. few facts. B tlalak Singh, appellant before us, was a tenant of the respondent Waqf. The respondent had obtained a decree on May 17, 1956, for Rs. 752 against Balak Singh for arrears of rent. The respondent tried to execute the decree by attachment of crops, but Balak Singh had apparently removed the crops. Thereupon the respondent, through one Reazuddin, claiming to be the Mutawalli of the res- C pondent Waqf, applied under s. 168 of the Act, praying that the amount of the decree be got paid under s. 168 and in default of payment of the decretal amount Balak Singh may be dispossessed. This application was filed on July 4, 1957. On April 3, 1958, notice was issued under s. 168 for May 2, 1958. On the latter date Parwana Dakhal (Warrant of Possession) in favour of the decree 0 holder was issued, and it was directed that the file be put up on June 13, 1958. On May 30, .1958, Balak Singh put in a petition raising various objections, one of them being that no notice of · the proceedings taken under s. 168 had been served on him. He further contended that l\.eazuddin had no right to file the applica- tion under s. 168. On
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