The executing Court cannot go behind the decree and must enforce the order in the operative part of the decree as it stands.

Rege, J.

1. This is a special appeal under the provisions of S.23, United State of Gwalior, Indore and Malwa.High Court Ordinance 2 of 1948 from the decision of Sanghi J. in second appeal. The learned Judge has certified the case as being a fit one for further appeal.

2. A preliminary objection is made on the ground that S.23 of the Ordinance, refers to appeals "arising out of a suit" and does not include orders in execution proceedings. There is, however, no substance in the contention. The word "suit" appearing in S.102, Civil Procedure Code, which provides that "no second appeal shall lie in any suit of the nature cognisable by Courts of small causes" has been held to include execution prcceedings. Kanailal Ghose v. Jatindra Nath, 45 Cal. 519: (AIR (5) 1918 Cal. 925) and the elaborate review of cases therein and also Raj Kishen v. Pearee Mohan, 20 W.R. 421 F.B., Aithala v. Subbanna, 12 Mad. 116, Din Dayal v. Patsa Khan, 18 ALL. 481: (1896 A.W.N. 160 FB). It is also well settled that execution proceedings are in continuation of the suit in which the decree under execution was made.

3. The appellant in this case obtained a decree on 6th June 1943 for ejectment of the respondents and arrears of rent due from them. The application for execution of this decree, culminating in this appeal was made on 21st October 1946 and was resisted by the respondents on several grounds of which the one now material is that the respondents were entitled to the protection provided by the Rent Control Order of 1943. That Order initially provided for a Controller to deal with cases of eviction of tenants but later the jurisdiction of civil Courts was restored and an amendment made by Notification in the Holkar Government Gazette dated 26th August 1946 which prescribed four conditions precedent to a Court ordering a tenant to be ejected.The contention on behalf of the respondents which found favour in their appeal before the District Judge. Indore, was that it was incumbent on the executing Court to determine whether the provisions of the Rent Control Order stand in the way of the execution of the decree. The learned District Judge held that the decision of this question would not amount to going behind the decree, and remanded the case to the executing Court; and the order was maintained in appeal from this order of remand.

4. Sec.8, cl.1 of the Rent Control Order as it stood before the amendment provided that "a tenant in possession of a house shall not be evicted therefrom whether in execution of a decree or otherwise and before or after the termination of the tenancy except in accordance with the provisions of this clause." The amendment of 26th August 1946 substituted the following for cl.(1) of Sec.8.

8. (1) Notwithstanding any agreement or contract to the contrary no Court shall order a tenant to be ejected during the continuance of this order unless-

(i) the tenant has not paid and is not ready and willing to pay the rent due in respect of the period before the suit; or

(ii) the tenant is not ready and willing to pay the fair rent of the house for such period thereafter as he may continue to be in possession or

(iii) the tenant has without the consent of the landlord, sublet the entire house or used it for a purpose other than that for which it was leased; or,

(iv) it is essential in the public interest that the landlord should take up residence in the area to which this Order applies and that he is unable to secure other suitable accommodation.

5. It is clear that all these clauses refer to a time prior to the institution of the suit itself and if none of these existed then no decree could be passed and no proceedings taken for execution. Prior to the amendment the law authorised the Court to examine the circumstances in execution proceedings; but with its repeal the ordinary provision of law that a decree must be executed as it stands must prevail.

6. On the fundamental principles of law, an executing Court cannot go behind the decree and