JUDGMENT :

H.L. Agrawal, C.J. and P.C. Misra, J. - This writ application has been filed against the order dated 8-12-1987 (Annexure-3) passed by the House Rent Controller, Berhampur, by which he has declined to grant stay of the further proceedings in Execution Proceeding No. 79 of 1987, pending in the Court, of Munsif, Berhampur, which was initiated in pursuance of the ex parte decree for eviction dated 31-3-1987 (Annexure-l) passed by the Controller in H.R.C. Case No. 6 of 1986, on the grounds that the application filed by the Petitioner under Order 9, Rule 13 of the CPC for setting aside the ex parte decree was belated that it was filed without giving notice to the landlord and that nothing was disposed in the application to show that the decree related to Execution Proceeding . No. 69 of 1987.

2. Having examined the matter we are satisfied that the grounds given by the Controller are not good grounds for rejecting the application. But the question raised in this case is as to whether the application for staying the execution of a decree passed by the house Rent Controller should be Bled before the executing Court or before the Controller himself who is in seisin of a proceeding for setting aside the fix parte decree for eviction.

3. Mr. Murty submitted with some vehemence that the application should .not have been presented before the. House Rent Controller and that the Petitioners should have gone to the executing Court. We do not find any merit in this contention of Mr. Murty. Section 16 of the Orissa House Rent Control Act empowers the Court where an appeal or an application for review or revision of the decree or order of eviction is pending to grant stay of execution of the decree or the order of eviction till disposal of the appeal, or, as the case may be the application for review or revision. Thus it is clear that an application for stay has to be made in the 'decree court' or the Court where the decree for eviction happens to be stili under consideration.

It is no doubt true that a situation of pendency of an application under order 9 Rule 13 to set aside ex parte decree has not been contemplated but obviously the legislature could not conceive to take note of all the circumstances. However, the intention being manifest we must hold that since the ex parte decree itself is under challenge on the grounds covered by order 9 Rule 13 of the CPC by applying the principle of ejusdem generis, the Controller must be held to be competent to dispose of the stay application and pass .appropriate order in the matter.

4. Having examined the impugned order (Annexure-3). it is apparent that the reasons given by the Controller for rejecting the application for stay are entirely erroneous and unsustainable. Otherwise also, it is equable that unless and until the disposal of the application under order 9 Rule 13 on its merits the Petitioners should not be thrown out of the premises in question. Therefore, taking into consideration all the facts and circumstances, we allow this writ application and direct stay of further proceedings in Execution Proceeding No. 79 of 1987 pending before the Munsif Berhampur.

5. It appears from the impugned order that the landlord has Dot entered appearance. We hope that in view of the stay granted by us he will feel interested for the early disposal of the application under order 9. Rule 13 of' the Code of Civil Procedure. We also direct the landlord to enter appearance in the proceeding to enable the Controller to dispose of the matter in accordance with law. Till the disposal of the matter by the Controller the stay order and the directions given by this Court ill the order dated 11-7-1988 in the matter of payment of the arrear as well as the current rent by the Petitioners shall remain in force.