Whether executing court can pass incidental, ancillary or necessary orders for enforcement of decree?

 Under provisions of Order XXI Rule 35(3) of the Code it is open for the judgment-debtor to remove or take away or do any other act so as to put the decree-holder in possession. The decree in question is one for possession. It is well settled that while executing a decree for possession the executing Court is entitled to pass such incidental, ancillary or necessary orders for effective enforcement of the decree for possession. A direction to judgment-debtor to remove the structure standing on the portion of the land of which possession is to be delivered to the decree-holder would naturally be an incidental direction. The decisions relied upon by the learned counsel for the decree-holder support his contention in that regard. Moreover, provisions of Section 52 of the Transfer of Property Act, 1882 also permit such course to be followed.

8. It is thus clear that the executing Court acted within its jurisdiction in granting time of fifteen days to the judgment-debtor to demolish the existing structure and to take away any valuable material. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 1210 of 2018

Decided On: 17.04.2018

 Mahadeo  Vs. Anandrao

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Leading judgment on jurisdiction of small cause court

In Ram Kishor Pandit v. Vijayabahadur Singh Jagtapsingh, MANU/MH/0017/1964 : AIR 1964 Bom. 85, the Bombay High Court highlighted that Section is intended to take away the jurisdiction of the regular Court and vest it in the special Court where a question between a landlord and tenant arises provided that the Act applies to the premises and the question relates to any of the matters enumerated, that is, to recovery of rent or possession or arising out of any of the provisions of the Act. It was observed that it was abundantly clear from the very nature of the provisions that even where the relationship of landlord and tenant is disputed, it will fall within the Act. In another decision in Dattatraya Krishna Jagnam v. Jairam Ganesh Gore, MANU/MH/0113/1965 : AIR 1965 Bom. 177, the phrase "relating to recovery of rent or possession" was pinpointed to bring out the scope and ambit of Sec. 28. It was observed:

"The words used are "relating to recovery of rent or possession" and not "for recovery of rent or possession". The words "relating to" are very wide and would include any suit or proceeding in connection with or having a direct bearing on the question of possession of the premises. Even if, therefore, the suit is not for possession, if the relief claimed in the suit is in regard to or in respect of recovery of possession, it will come within the ambit of this Section. Thus a suit, in which the plaintiff seeks to get rid of an order of his eviction by an injunction restraining the defendant from interfering with his possession, will also be covered by this Section." (Para. 7)

Section 28 confers jurisdiction upon the special Court not only to decide questions referred to in the Section, but also all matters which are incidental or ancillary to the determination of these questions, See Meharsingh Sethi v. Khurshed Nadirahaw Satarwalu, 56 Bom. LR 540 and Importers and Manufacturers Ltd. v. Pheroze F. Taraporewala, MANU/SC/0071/1952 : 1953 SCR 226 : AIR 1953 SC 73 in which the Supreme Court observed:

"Once there is a suit between the landlord and a tenant relating to the recovery of rent or possession of the premises, the Small Cause Court acquires the jurisdiction not only to entertain that suit but also to deal with any claim or question arising out of the Act or any of its provisions which may properly be raised in such a suit."

It was held in this case that the Court of Small Causes has jurisdiction not only to decide the dispute between the plaintiff landlord and the tenant but also a question raised between the plaintiff and the sub-lessee." (Para. 8)

4.5. From the above position of law, it clearly emerges that the provision seeks to cover all issues required to be decided under the Bombay Rent Act by firstly employing non-obstante clause and using the words "relating to". As is rightly held, the phrase "relating to" is wide. The wider interpretation given is justified. It flows from the very language of the provision and accords to the purpose of vesting the Rent Courts with special and exclusive jurisdiction. As observed in O.N. Bhattnagar v. Smt. Rukibai Narsindas, (MANU/SC/0217/1982 : 1982 (2) SCC 244), Sec. 28 of the Rent Act operate to confer exclusive jurisdiction on certain Courts to decide all questions or claims under that Act as to the parties between whom there is or was relationship and tenant. It applies even where relationship of landlord and tenant is disputed. The relationship between landlord and tenant and the disputes incidental thereto, when emanates from the plaint, Sec. 28 would apply and the suit would became triable by the rent Court.

IN THE HIGH COURT OF GUJARAT

Civil Revision Application No. 302 of 2012

Decided On: 10.01.2014

Banubibi Ibrahim Vs. Abdulkarim Ramzanibhai Shaikh

Hon'ble Judges/Coram:

N.V. Anjaria, J.

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Leading judgment on inherent powers of tribunals

It   is   a   settled   principle   that   where   a   Tribunal   or
statutory   appellate   Authority   that   has   been   conferred   with
jurisdiction to decide proceedings under a statute, it is also clothed
with   such   ancillary     or   incidental   powers   as   are   necessary   to
discharge its functions effectively for the purposes of doing justicebetween the parties. The reliance placed by the learned Counsel
for the petitioners on the decision of the Supreme Court in Income
Tax Officer (supra) in that regard is apposite.  In para 4 thereof, it
has been observed by the Supreme Court as under:
“4.....................................................................
It is a firmly established  rule that an express
grant   of   statutory   power   carries   with   it   by
necessary implication to authority to use all
reasonable means to make such grant effective
(Sutherland   Statutory   Construction,   Third
Edition, Articles 5401 and 5402).  The powers
which have been conferred by Section 254 on
the   Appellate   Tribunal   with   widest   possible
amplitude must carry with them by necessary
implication all powers and duties incidental
and necessary to make the exercise of those
powers fully effective.  In Domat's Civil Law,
Cushing's  Edition, Vol. I  at  page  88, it has
been stated:
“It is the duty of the judges to apply the
laws,   not   only   to   what   appears   to   be
regulated   by   their   express   dispositions
but   to   all   the   cases   where   a   just
application of them may be made, and
which appear to be comprehended either
within   the   consequences   that   may   be
gathered from it.”
Maxwell   on   Interpretation   of   Statutes,
Eleventh Edition contains a statement at
p.   350   that   “where   an   Act   confers   a
jurisdiction, it impliedly also grants the
power   of   doing   all   such   acts,   or
employing such means, as are essentiallynecessary to its execution. Cui jurisdictio
data   est,   ea   quoqe   concessa   esse
vindenture,   since   guibus   jurisdictio
explicari   non   potuit.”    An   instance   is
given based on Ex Parte, Martin, (1879)
4  QBD   212   at   p.  491  that   “where   an
inferior court is empowered to grant an
injunction,   the   power   of   punishing
disobedience   to   it   by   commitment   is
impliedy conveyed by the enactment, for
the power would be useless if it could
not be enforced.”
The judgment of the Supreme Court in Radhakrishna

Mani Tripathi (supra) proceeds on aforesaid principle.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 2300 OF 2015
PETITIONERS:
         
Shri Omprakash Nathuji Vaidhya, 
V The   Divisional   Joint   Registrar,   Cooperative  Societies,   
        CORAM: A.S. CHANDURKAR, J.
        DATED: 14thDECEMBER, 2015.
Citation: 2016(2) MHLJ 936

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