Darshan Kumar Khanna vs Smt. Pushpa Mehra etc.

R.S. Pathak, C.J.—This revision petition is directed against an order of the learned Senior Subordinate Judge, Simla, declining to issue a commission under Order 26, Rule 4 of the CPC for the examination of witnesses.

The Respondent C. Baljee obtained an order for the eviction of Shrimati Pushpa Mehra. The order was put into execution u/s 17 of the East Punjab Urban Rent Restriction Act, 1949. That provision requires that the order be executed by a civil court having jurisdiction in the area as if it were a decree of that court. The learned Senior Subordinate Judge commenced execution proceedings. An application was made by the Petitioner Darshan Kumar Khanna under Order 26, Rule 4 of the CPC for the examination of certain witnesses, and the application was supported by reference to Section 141 of the Code. The learned Senior Subordinate Judge, by his order dated June 12, 1975, rejected the application on the ground that the provisions of Order 26 could not be invoked by reference to Section 141 of the Code.

In this revision petition, it is vehemently contended by learned Counsel for the Petitioner Darshan Kumar Khanna that the order is without jurisdiction. To my mind, the submission is without force. The order of eviction was put into execution by virtue of Section 17 of the East Punjab Urban Rent Restriction Act. The order had to be executed by a civil court. The learned Senior Subordinate Judge had jurisdiction to initiate execution proceedings. It is not disputed that he was a civil court having jurisdiction in the area. The order was to be executed as if it was a decree made by the learned Senior Subordinate Judge. It was an execution proceeding, and a perusal of the record indicates that it was treated as such. It is contended by learned Counsel for the Petitioner that it was tried as a suit and therefore Order 26, Rule 4 of the Code was rightly invoked. Now, Section 47 of the CPC provides for the determination of questions by a court executing a decree, and Sub-section (2) thereof empowers the court to treat a proceeding under that section as a suit. But when the court decides to treat a proceeding so, it is subject to any objection as to limitation or jurisdiction and to the further payment of any additional court fee. There is nothing on the record before me to indicate that the learned Senior Subordinate Judge proposed to treat the proceeding before him as a suit. It is true that he framed issues and recorded evidence, but that in itself is no sufficient indication that the proceeding was being tried as a suit. The proceeding is being pursued as an execution proceeding. It is clear that Section 141 of the Code cannot be invoked. Reference may be made to Dokku Bhushayya v. Katragadda Ramakrishnayya and Ors. AIR 1962 S.G. 1886, 1893. where the Supreme Court has, approved of the dictum laid down by the privy council in Thakur Prasad v. Sheikh Fakir-Ullah ILR 17 All 106 (P.C.), Order 26, as its provisions show, contemplates a suit. It can also be invokedin a proceeding to which Section 141 of the Code applies. The execution proceeding before me being one which is neither a suit nor one to which Section 141 can be applied does not empower the learned Senior Subordinate Judge to invoke the provisions of Order 26.

In the circumstances, the revision fails and is dismissed. There is no order as to costs. The parties will now appear before the learned Senior Subordinate Judge, Simla on March 21, 1977.