Acceptance of rent due after the order of eviction if bars execution.

‘The petitioner in this case was the tenant against whom an order for eviction was obtained by the respondent landlord on 3rd August, 1957. The agreed rent payable by the petitioner to the landlord was Rs. 21 per month. After the respondent secured an order of eviction in 1957, he attempted to execute the same in the years 1958 and 1961. In fact, it appears that when the execution petition was filed in 1958, a warrant for possession was also issued. It is not, however, clear from the record as to the circumstances under which the execution petition was withdrawn by the landlord. After the withdrawal of the execution petition in 1958, the landlord again filed a petition for possession in the year 1961 which again appears to have been dismissed; the reasons for dismissal, however, are not clear. Thereafter, the Limitation Act of 1963 was enacted which gave apparently to the landlord the benefit to execute the decree within a period of 12 years from the date it was passed. No steps were taken by the landlord till 1966 when he filed E.P. No. 751 of 1966 for delivery of possession as per the order of the Rent Controller in the main petition obtained by him in August, 1957. This was opposed by the petitioner mainly on two grounds. The first contention of the petitioner was that there was a fresh tenancy created by acceptance of rents by the respondent between 1957 and 1966 and therefore the order cannot be executed. His second contention was that the Rent Controller not being a civil Court, the decree which the landlord executed to secure delivery of possession of the property in question in the ordinary Courts of law cannot be termed as a decree of a civil Court so as to attract Article 182 and the relevant sub-sections of the Limitation Act. The learned City Civil Judge did not agree with the contentions raised by the petitioner and held that the execution petition was not barred by limitation and no fresh tenancy had been created.

In this Court, learned Counsel for the petitioner, while repeating the very same contentions, urges that a fresh tenancy has been created as between the landlord and the tenant by acceptance of rents after the passing of the order for eviction. The case of the petitioner in the lower Court was that there was an agreement to pay increased rent and that was being paid by the tenant to the landlord, and by such payment there was indeed a fresh tenancy. This was disbelieved by the lower Court. Learned Counsel for the petitioner, however, pursues another line of argument by stating that even though the rent has not been increased, yet by the mere receipt of the original rent as agreed upon between the tenant and the landlord such receipt of rent by itself is a ready indicia to conclude that the intention of the landlord was to create a fresh tenancy between himself and the tenant. I am unable to agree. If a landlord received the rents after an order for eviction it was not because he waived his right to secure possession of the property by virtue of the order of eviction already secured by him, but because he did not want to lose the legitimate amount to which he is entitled for the wrongful occupation of the premises by the tenant. In fact, the tenant obviously was in wrongful occupation of the premises. After the order for eviction was passed by the Rent Controller, any amount received by the landlord during such occupation of the tenant would not, in my view, tantamount to creation of a fresh relationship of landlord and tenant, different and distinct from the earlier relationship which is the foundation of the very action. Support is also gained for this view in a case reported in Ghulam Ghouse v. Raia Rao1, Happell, J., while repelling a similar contention which, of course, arose under section 116 of the Transfer of Property Act observed that section 116 was not applicable to the case, and that no new tenancy was created by the subsequent payment of rent to the landlord, as the tenant was not a pers