No second appeal lies from an order in execution of a decree for eviction passed under the Delhi and Ajmer Rent Control Act, 1952.

( 1 ) A preliminary objection has been raised to the maintainability of the regular second appeal which was decided by Khanna J. on March, 22, 1971 and it is, therefore, urged that this letters patent apppeal is also not competent.

( 2 ) THE respondent landlord filed a suit for ejectment of the appellant under section 13 of the Delhi and Ajmer Rent Control Act, 1952, hereinafter REFERRED TO to as "the said Act" on grounds of non-payment of rent ; mis-user of the premises and damage to the property. This suit was filed in the civil Court having jurisdiction. The suit was compromised on May 9, 1958 and a decree for ejectment was passed in favour of the respondent and against the appellant. The condition of the decree was that if the appellant paid Rs. 300. 00 in full and final settlement up to July 1, 1958, the decree for ejectment shall be deemed to have been satisfied. The appellant did not make payment in accordance with the compromise or the decree. The respondent took out execution of the decree for ejectment and an application under section 47 of the Code of Civil Procedure was filed by the appellant in the executing Court on the ground that the decree for eviction was passed solely on the basis of and in terms of the compromise without the trial Court having recorded its satisfaction as to the existence of any of the three grounds of ejectment and was, therefore, in contravention of the mandatory requirements of section 13 of the said Act. The objections of the appellant were dismissed by the executing Court as also by the first appellate Court which was the Court of the Senior Subordinate Judge with enhanced appellate powers. Against the Judgement of the first appellate Court, the appellant filed regular second appeal No. 17 of 1970 which was dismissed, as stated earlier, by Khanna J. by his order dated March 22, 1971 and, after obtaining a certificate from the learned Single Judge, this letters patent has been filed.

( 3 ) EVEN though the objection to the maintainability of the second appeal was not raised before the learned Single Judge, we have entertained the objection because it goes to the root of the matter.

( 4 ) ALL suits, applications and other proceedings contemplated by the said Act were to be tried by the ordinary civil Courts and this jurisdiction was conferred by sub-section (1) of section 33 of the said Act which provides that any civil Court in the State of Delhi or Ajmer which has jurisdiction to hear and decide a suit for recovery of possession of any premises shall have jurisdiction to hear and decide any case under this Act relating to such premises if it has pecuniary jurisdiction and is otherwise eompetent to hear and decide such a case under any law for the time being in force. It is to be noted that the expression with reference to the proceedings which could be taken under the said Act which has been used in this section is "any case under this Act". Section 33 appears in Chapter V of the said Act which has provisions relating to the jurisdiction of Courts, appeals, review and revision. Sub-section (4) of section 33 provides :

"for the purposes of this Chapter, a case under this Act, includes any suit, application or other proceeding under this Act and also includes any claim or question arising out of this Act or any of its provisions Section 34 of the said Act provide for appeals. Sub-section (1) of this section provides for a first appeal against any decree or order of a Court passed under the said Act to the Courts prescribed therein. Sub-section (2) of this section prohibits a second appeal because it provides that "no second appeal shall lie from any decree or order passed in any case under this Act. " It is again to be noticed that the expression used in this sub-section is "in any case under this Act".

( 5 ) THE appellant wants to meet the objection regarding the maintainability of the second appeal on the ground that the order under appeal is an order in execution of an