The amendments made to Order XXI of the Civil Procedure Code in 1976 conferred plenary jurisdiction on the executing court to decide all questions, including questions of right, title or interest in the property, arising between the parties to a proceeding on an application under Rule 97 or Rule 99, notwithstanding anything to the contrary contained in any other law for the time being in force.

Headnote:
PRESIDENCY SMALL CAUSE COURTS ACT, 1882 - SECTION 41 - BOMBAY RENTS, HOTEL AND LODGING HOUSE RATES CONTROL ACT, 1947 - SECTION 28 - CIVIL PROCEDURE CODE, 1908 - ORDER XXI, RULES 99-105 - JURISDICTION OF EXECUTING COURT TO DECIDE QUESTIONS OF TENANCY UNDER BOMBAY RENT ACT - SCOPE AND EFFECT OF AMENDMENTS TO ORDER XXI - INTERPRETATION OF STATUTORY PROVISIONS - CONFLICT BETWEEN GENERAL AND SPECIAL LAWS - SUMMARY NATURE OF PROCEEDINGS UNDER RULE 101 OF ORDER XXI.
Fact of the Case:

The petitioners, as landlords, obtained possession of the suit premises from the original judgment-debtors and inducted new tenants. The respondent, claiming to be a tenant in his own right, filed an application under Order XXI Rule 99 of the Civil Procedure Code for restoration of possession. The trial court allowed the application, holding that the respondent had proved his tenancy. The petitioners appealed, and the appellate court dismissed the appeal. The petitioners then filed a writ petition in the High Court, challenging the jurisdiction of the executing court to decide the question of tenancy under the Bombay Rent Act.
Finding of the Court:

The High Court held that the executing court had jurisdiction to decide the question of tenancy under the Bombay Rent Act, pursuant to the amendments made to Order XXI of the Civil Procedure Code in 1976. The court found that the provisions of Rule 101 of Order XXI were clear and unambiguous, and that the legislature intended to modify the law as it stood prior to the amendment. The court also held that there was no conflict between the provisions of the Presidency Small Cause Courts Act and the Bombay Rent Act on the one hand and the provisions of Order XXI of the Civil Procedure Code on the other, and that the general law, as amended, prevailed over the special law. The court further held that the proceedings under Rule 101 were in the nature of a suit and should be conducted in an appropriate manner, with parties being allowed to lead evidence and produce documents.
Issues: 1. Whether the executing court had jurisdiction to decide the question of tenancy under the Bombay Rent Act. 2. Whether there was a conflict between the provisions of the Presidency Small Cause Courts Act and the Bombay Rent Act on the one hand and the provisions of Order XXI of the Civil Procedure Code on the other. 3. Whether the proceedings under Rule 101 of Order XXI were in the nature of a suit and should be conducted in an appropriate manner.
Ratio Decidendi: 1. The provisions of Rule 101 of Order XXI of the Civil Procedure Code, as amended in 1976, conferred plenary jurisdiction on the executing court to decide all questions, including questions of right, title or interest in the property, arising between the parties to a proceeding on an application under Rule 97 or Rule 99. 2. The provisions of section 41(2) of the Presidency Small Cause Courts Act and section 28 of the Bombay Rent Act, which barred certain suits or proceedings from being tried by the executing court, did not apply to the field covered by Rule 101 of Order XXI of the Code. 3. The proceedings under Rule 101 and Rule 105 of Order XXI of the Code of Civil Procedure were in the nature of a suit and it would be appropriate for the executing court to frame issues and allow parties to lead all evidence that they may desire to do.
Final Decision: The petition was dismissed, with no order as to costs.

JUDGMENT - Jahagirdar R.A. J -The facts leading to this petition have been set out in great details and with sufficient accuracy in the judgments of the two courts below and hence it is not necessary for me to narrate the same. However, for the disposal of this petition a brief restatement of the facts is warranted.

2. The suit premises in so far as this petition is concerned, consist of the first floor of a building bearing No. 10A and situate on Shankarsheth Road, Bombay 400 007. Original respondents Nos. 1 and 2 were, according to the petitioners, the legel representatives of the original licensee.

3. The petitioners filed a suit being L. E. Suit No. 145/407 of 1976 in the Small Cause Court at Bombay against respondents Nos. 1 and 2 under section 41 of the Presidency Small Cause Courts Act, 1882, as amended by Maharashtra Act No. 19 of 1976. Prior to this amendment section 41 of the Act provided for proceedings which could be initiated by a licensor against a licensee through an application. After the amendment, in effect a licensor has to file a regular suit and it is thus that the aforesaid suit was filed by the petitioners against respondents Nos. 1 and 2. The said suit which was filed on 22nd of September 1976, came to be decreed ex parte on 5th of July 1977. In execution of the said decree the 3rd respondent in this petition was dispossessed. At this stage it may be stated that original respondents Nos. 1 and 2 in this petition have been deleted by an order of this Court and, therefore, the 3rd respondent will hereinafter be referred to as “the respondent” for brevity's sake.

4. The respondent filed an application under Order XXI Rule 99 of the Civil Procedure Code for restoration of possession of the suit premises by contending that he was in possession of the suit premises in his own right and not through the original judgment-debtors. It was his contention that he was in such possession as a tenant of the suit premises. The learned Additional Chief Judge of Court Room No. 9, hereinafter referred to as “the trial Court”, heard this application as Miscellaneous Notice No. 1575 of 1977. He heard the application bearing in mind the provisions contained in Rules 99 to 105 of Order XXI of the Code. It needs no mention that the said rules have been amended by the Parliament by Act No. 104 of 1976. To this, further reference would be made later in this judgment. The trial Court by its judgment and order dated 3rd of July 1981 made the notice absolute by holding that the respondent had proved that he was a tenant of the suit premises in his own right. The trial Court, therefore, proceeded to direct that the petitioners should restore the possession of the suit premises to the respondent by the end of August 1981.

5. In passing, It may be noted that the petitioners after obtaining, possession from the original respondents Nos. 1 and 2 inducted Kersy P. Golwala and Kashmira K. GoIwaJa as tenants. The execution of the order dated 3rd of July 1981 was obstructed by the said Golwalas. Thereafter Obstructionist Notice No G3 of 1982 was taken out. During the course of the hearing of the said notice Golwalas made an application to the executing Court contending that neither the executing Court nor any Court under Order XXI of the Civil Procedure Code had jurisdiction to try and decide the question of tenancy under the Bombay Rents, Hotel and Lodging House Rates Control Act, hereinafter referred to as “the Bombay Rent Act”. This application was rejected by the trial Court by its order dated 4th July 1983 which order was challenged by the Golwalas by filing a revision application. That revision application being Civil Revision Application No. 113 of 1983 was heard and dismissed by a Bench of two Judges of the Small Causes Court by its judgment and order dated 19th August 1983. Against this order the Golwalas have preferred Writ Petition No. 3899 of 1983.

6. To return to the narration of the facts leading to the present peti tion it may be

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