Sustainability of appeal to be filed against order of Rent Controller.

This second appeal is filed by the 2nd respondent in the court of the Principal District Munsif, Karaikal in E.A.No.155 of 1980 in E.P.No.51 of 1980 in H.R.C.O.P.No.90 of 1979.

2. The 1st respondent herein obtained an order of eviction against the 2nd respondent in H.R.C.O.P.No.90 of 1979. When the order was sought to be executed, the appellant herein obstructed. The 1st respondent filed E.A.No.155 of 1980 for removal of obstruction under 0.21, Rules 97 and 98 of the Code of Civil Procedure. The Principal District Munsif, Karaikal, granted the prayer and directed delivery of possession. The appellant herein filed AS.No.3 of 1981 on the file of the Sub Court, Karaikal. While dismissing the appeal on merits, the Subordinate Judge held that the appeal was not maintainable. The present second appeal is against the judgment of the Subordinate Judge. During the pendency of the second appeal, the appellant died and her legal representatives were brought on record as the 2nd appellant and 3rd respondent. The 3rd respondent also died and his legal representatives have been brought on record as respondents 4 to 11.

3. When the appeal was taken up for hearing, a preliminary objection was raised by learned counsel for 1st respondent that the appeal is not maintainable. Really the objection is that the appeal by the appellant in the lower appellate court was itself not maintainable and consequently, the second appeal is not maintainable.

4. Learned counsel submits that under Sec. 18 of the Pondicherry Buildings (Lease and Rent Control) Act, an order for eviction shall be executed by the Munsif having jurisdiction over the area in which the building is situated as if it were a decree passed by him. According to learned counsel, the appeal against the order of the Munsif shall be only to the appellate authority under Sec.23, if an appeal lies. But, according to him, under the provisions of Sec.18 of the Pondicherry Act, an appeal does not lie but a revision would lie under Sec.25. It is, therefore, contended that the remedy of the appellant was to file a revision against the order of the Principal District Munsif and not an appeal to the Subordinate Judge.

5. I do not agree with this contention. Sec.l8(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act contains similar language but the authority under the said sub-section to execute the orders is the Controller himself. Under the said sub-section, the controller shall execute the order as if it is an order of a civil court and for that purpose, he shall have all the powers of the civil court. Under Sub-sec(2) of Sec.18, an order passed in execution under Sub-sec(1) shall not be subject to any appeal or revision. The question whether an order removing obstruction or dismissing an application to remove obstruction passed under O.21, Rule 97 of the Code of Civil Procedure is an order under Sec.l8(1) of the Tamil Nadu Act arose for consideration before a Division Bench of this Court in Fathima Automobiles v. P.KP.Nair, A.I.R. 1985 Mad. 318. The Division Bench held that an order under O.21, Rule 97 of the Code of Civil Procedure will not fall within the scope of Sec.l8(1). The reasoning of the Division Bench is that it is an order passed by the Rent Controller in exercise of the powers of a Civil Court an independent order passed under the Code of Civil Procedure and not the Rent Control Act. The Bench proceeded to hold that the order being passed by Rent Controller, an appeal would lie under Sec.23 of the Tamil Nadu Buildings (Lease and Rent Control) Act, as under the said section any order passed by the Rent Controller is appealable. If the reasoning of the Bench is applied to the provisions of the Pondicherry Act, it is clear that the order passed by the Principal District Munsif, Karaikal is one under O.21, Rule 97 of the Code of Civil Procedure and not under Sec.18 of the Pondicherry Buildings (Lease and Rent Control) Act. Consequently the Proviso to Sec.18 will not app