A tenant cannot be evicted, even during execution proceedings, until steps are taken under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, for their eviction.

Rai, J.

1. This is an appeal by the decree-holder against the order passed by the District Judge of Saran reversing that of the Munsif First Court, Chapra.

2. The appellant as plaintiff obtained a decree for ejectment against the defendants who were tenants of the premises in question. The decree has been executed, and, in the execution proceedings, the tenant-respondents have taken up a plea that Sec.11, Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, is a bar to the decree-holder evicting them by these proceedings.

3. The trial Court dismissed the objection of the tenants-respondents on the ground of their having not taken such objection in the suit itself which would disentitle them from raising such objection in the execution proceedings by virtue of the principles of constructive res judicata, as contemplated by Sec.11, Expl. 4, Civil P. C. The executing Court was also of opinion that the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, do not apply to the facts of this case, as the notice to quit had been served before Act III [3] of 1947 came in force.

4. On appeal, the lower appellate Court has taken another view of the matter. It has held that the provisions of Sec.11, Bihar Act (III [3] of 1947) are wide enough to entitle the tenants to raise this objection during the execution proceedings, It has held that there is no bar against statute. In arriving at the judgment, the lower appellate Court has referred to the cases of Mrs. Dharamshila Lall V/s. Bibi Amna, A. I. R. (35) 1948 Pat. 269: (26 Pat. 693) and Sant Kuer V/s. Ganesh, A. I. R. (36) 1949 Pat. 137 : (27 Pat. 695). Their Lordships have held in those cases that the tenants have a statutory right to remain in possession of the premises unless the landlord takes recourse to proper proceedings as enjoined by Bihar Act (III [3] of 1947) for their eviction, and, unless that is done, no Court had jurisdiction to evict them. Mr. Saran, appearing for the appellant, has raised the point that, as this plea was not granted to the tenants in the suit in ejectment itself, they are not entitled to raise this plea at the execution stage, and their right, if any, is barred by res judicata. Sec.11, Bihar Act (III [3] of 1947), runs as follows :

"Notwithstanding anything contained in any agreement or law to the contrary and subject to the provisions of Sec.12, where a tenant is in possession of any building, he shall not be liable to be evicted therefrom, whether in execution of a decree or otherwise, except ....."

Then there are certain exceptions noted in that section. Now, this Sec.11, in very clear terms lays down that a tenant cannot be evicted even during the execution proceedings until steps are taken under that Act for his eviction, and, in spite of the fact that in the title suit this objection was not pressed on behalf of the tenants, the tenants will not be debarred from raising this objection in the execution proceedings. In my judgment, Sec.11, Bihar Act (III [3] of 1947) is effective enough to grant relief to the tenants. It steers clear of any bar of constructive res judicata as raised by the learned counsel for the appellant.

5 Mr. Saran, further, raised a point that, during the execution proceedings, the tenants filed an objection that they were not liable to be evicted by virtue of the provisions of Sec.11, Bihar Act (III [3] of 1947), on which objection a miscellaneous case was started which was ultimately dismissed for default on 5th February 1949. The tenants respondents filed another objection petition on 9th February 1949, which has ultimately succeeded. Dismissal of the first objection petition is a farther bar, according to him, in the way of the tenants raising the same objection over again. From the order sheet of the executing court, it appears that the previous miscellaneous case that was filed by the tenants objecting to their eviction has been stayed by an order from this Court, and, on the groun