JUDGMENT

M. C. Desai, C.J. - This is an appeal from a judgment of our brother Sharma quashing by certiorari an order passed by the District Magistrate under Sec. 7 (2) of the U.P. (Temporary) Control of Rent and Eviction Act calling upon the respondent landlord of an accommodation to let it to the appellant. Previously the appellants own brother, who is cited as respondent No. 3, was the tenant of the accommodation and the landlord started proceedings for his ejectment under Sec. 7-B on account of his being in arrears of rent. The tenant contested the proceedings on the ground that the respondent was not the owner of the accommodation but failed and ultimately a Munsif on 23-1-1962 passed an order under Sec. 7-B (5) for the tenants eviction and sent it to the District Magistrate for execution. It is not known what exactly the District Magistrate did on receipt of the order in order to execute it but he did not put the respondent in possession of the accommodation. On 27-1-1962 the tenant informed the Munsif and the District Magistrate that he had vacated the accommodation; he only said that he had vacated the accommodation and not that he had delivered possession over it to the respondent. On the same date the appellant applied for an order of allotment under Sec. 7(2) in his favour. The District Magistrate gave notice of the application to the respondent asking him to show cause why the order prayed for might not be issued. On 2-2-1962 the respondent appeared before him, denied that the tenant had vacated or delivered possession over the accommodation to him and requested the District Magistrate first to execute the order passed under Sec. 7-B (5). Even on this the District Magistrate did not proceed to execute the order and in stead made an enquiry whether the tenant had vacated the accommodation or not. On 17-3-1962 he held that the tenant had vacated the accommodation and passed the impugned order requiring the respondent to let it to the appellant. The order has now been set aside by our learned brother on the ground that the accommodation was not vacant on the date on which it was passed.

2. It was contended by Sri Trivedi that once the District Magistrate found that the accommodation was vacant it was not open to our learned brother to go into that question of fact. The question is not wholly of fact; it involves the important question how an accommodation can be said to fall vacant when an order of eviction has been passed under Sec. 7-B (5) by Munsif. It is of course open to the tenant to surrender possession to the landlord in obedience to the order, but in the absence of such surrender he remains in possession so long as the order is not executed by the District Magistrate and the accommodation cannot be said to have fallen vacant. If he merely vacates i.e. abandones possession (without surrendering possession to the landlord) and the landlord does not re-enter, there is no vacancy. Under Sec. 7-B (6) the Munsif is bound to send a copy of the eviction order to the District Magistrate and the latter is unconditionally bound to execute it by evicting the tenant. The District Magistrate must in any case proceed to execute the order on the spot; if he finds there that the tenant has surrendered possession to the landlord, or has abandoned and the landlord has taken possession, he may have to do nothing (because he cannot put the landlord into possession twice or evict the tenant who has left his possession in the legal manner i.e. by surrender or by abandonment followed by re-entry by the landlord), but in any other case he must execute the order, and unless he executes it, it cannot be said that the accommodation is vacant. As against the landlord, the accommodation cannot be said to be vacant unless (in the absence of surrender or abandonment followed by re-entry) the order is executed.

3. The information sent by the tenant on 27-1-1962 and the application made by the appellant on the same day for an allotment order in