1. This appeal, against an appellate order of the Rent Control Tribunal, has arisen out of an application made under Order 21, Rule 16, Code of Civil Procedure by Shri Madan Lal respondent and his brother Shri Harish Chand.

2. The appellant was a tenant of the premises in dispute under Shri Lakhu Ram, father of Shri Madan Lal and Shri Harish Chand, Shri Lakhu Ram had filed an application, under Section 14 of the Delhi Rent Control Act, for the eviction of the appellant on the ground that he bona fide required the premises in dispute for occupation for residence for himself and for the members of the family dependent on him. The order, directing the eviction of the appellant was passed on the 17th January, 1964. The Additional Controller had held that Shri Madan Lal and his family members were dependent on Shri Lakhu Ram and that Shri Lakhu Ram bona fide required the premises in dispute for residence for himself, Shri Madan Lal and the members of his family. The appellant went up in appeal against the order of eviction. During the pendency of the appeal, Shri Harish Chand, the second son of Shri Lakhu Ram, was transferred to Delhi from Saharanpur. Shri Lakhu Ram put in an application, alleging that the premises in dispute were also required for the residence of Shri Harish Chand and his family. The Rent Control Tribunal allowed this application and held that Shri Lakhu Ram genuinely required the premises in dispute for residence for himself, Shri Madan Lal and his family and Shri Harish Chand and his family. The appeal filed by the appellant was dismissed on the 24th July, 1964. Shri Lakhu Ram died on the 9th June, 1965. Shri Madan Lal and Harish Chand made an application for execution of the order of eviction on the 9th July, 1965 for want of permission of the Competent Authority under the Slum Areas (Improvement and Clearance) Act for execution of the eviction order. Shri Madan Lal and Shri Harish Chand then filed the present application under Order 21, Rule 16 of the Code of Civil Procedure. It was stated that Shri Lakhu Ram had executed a Will in favour of Shri Madan Lal and Harish Chand, bequeathing all his property of them. It was requested that in execution of the order of eviction, possession, of the premises may be delivered.

The application was contested on behalf of the appellant. He pleaded that Shri Madan Lal and Shri Harish Chand had no locus standi to make the application, as they had not got any succession certificate or Letters of Administration or a probate of the Will. The appellant denied the existance of any Will in favour of Shri Madan Lal and Shri Harish Chand. The appellant contended that there was no question of substitution of Shri Madan Lal and order Harish Chand in place of Shri Lakhu Ram as the eviction order had been passed on the ground of the personal necessity of Shri Lakhu Ram only.

The learned Additional Controller rejected the pleas of the appellant. He held that Shri Lakhu Ram had made a valid will in favour of Shri Madan Lal and Shri Harish Chand and that they had locus standi to execute the eviction order. He further held that the probate of the Will was not necessary for execution of the eviction order. But the Additional Controller allowed only Shri Madan Lal, to execute the eviction order. He had done so perhaps under the impression that before him. Shri Lakhu Ram had pleaded his own requirement and that of Shri Madan Lal and not of Shri Harish Chand. It appears that the order of the Rent Control Tribunal holding that the premises were bona fide required by Shri Lakhu Ram for himself and for Shri Madan Lal, Harish Chand and their families were not brought to the notice of the Additional Controller.

3. The appeal of the appellant against the order of the Additional Controller allowing Shri Madan Lal to execute the order of eviction was dismissed by the Rent Control Tribunal. Hence this second appeal. The first contention of the learned Counsel for the appellant was that Shri Madan Lal was not competent to execute the eviction order without the production of the probate of the Will alleged to have been executed by Mr. Lakhu Ram in favour of Shri Madan Lal and Shri Hari Chand. The learned Counsel placed reliance on Section 213 of the Indian Succession Act. That section reads:

(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of Administration with the Will or with a copy of an authenticated copy of the Will annexed.

(2) This section shall not apply in the case of Wills made by Muhammadans, and shall only apply:

(i) in case of Wills made by any Hindu, Budhist, Sikh or Jaina where such Wills are of the classes specified in Clauses (a) and (b) of Section 57; and

(ii) in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962, where such Wills are made within the local limits of the ordinary original Civil jurisdiction of the High Courts at Calcutta, Madras and Bombay and where such Wills are made outside those limits, in so far as they relate to immovable property situate within those limits Section 57 referred to in Sub-section (2) of Section 213 reads:

The provisions of this part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply.

(a) to all Wills and codicils made by any Hindu, Budhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras, and Bombay; and

(b) to all Such Wills and codicils made outside those territories and limits so far as relate to immovable property situate within those territories or limits; and

(c) in all Wills and codicils made by any Hindu, Budhist, Sikh and Jaina on or after the first day of January, 1927, to which these provision are not applied by Clauses (a) and (b):

Provided that marriage shall not revoke any such Will or codicil.

4. A plain reading of Section 213 and Section 57 aforesaid makes it abundantly clear that the provisions of Section 213 requiring probate do not apply to Will made out side Bengal and the local limits of the ordinary original jurisdiction of the High Courts of Madras and Bombay except where such Wills relate to property situated in the territories of Bengal or within the aforesaid local limits. If any authority is required, reference may be made to Ram Chand v. Sardara Singh. The property bequeathed, in the present case, is not situated within the local limits of the ordinary jurisdiction of the High Court of Madras or Bombay or in the territories of Bengal. The provisions of Section 213 were not attracted and Shri Madan Lal could maintain the application for execution of the eviction order without obtaining probate of the Will of Shri Lakhu Ram.

5. The learned Counsel for the appellant had, also, contended that the execution of the Will was not proved. Both the Additional Controller and the Rent Control Tribunal have concurrently held that Shri Madan Lal had established that the Will had been executed by Shri Lakhu Ram. The finding is based on the evidence of Shri Ram Narain, DHW/1, the scribe of the Will, and Shri Rewati Lal, DHW/2, and Smt. Bishan Devi, two attesting witnesses of the Will, Smt. Bishan Devi was the daughter of the deceased. The concurrent finding of fact, regarding the executing of Will, which is based on evidence, cannot be challenged in an appeal under Section 39 of the Delhi Rent Control Act vide Vinod Kumar v. Ajit Singh Ahluwalia.

6. It was, further, contended by the learned Counsel for the appellant that the property covered by the Will was ancestral property and Shri Lakhu Ram was not competent to make a Will about the ancestral property, and the Will was not, therefore, valid. The appellant has no locus standi to challenge the validity of the Will on the ground that Shri Lakhu Ram could not alienate ancestral property, assuming for the sake of argument that the property bequeathed was ancestral property, was the appellant is not an heir of Shri Lakhu Ram.

7. The second contention of the learned Counsel for the appellant was that Shri Madan Lal had no locus standi to apply for the execution of the order of eviction, as the order was passed in favour of Shri Lakhu Ram on the ground of his personal requirement. It has already been seen that the order of eviction was based on bona fide requirement of Shri Lakhu Ram for residence for himself, Shri Madan Lal and the members of his family and Shri Harish Chand and the members of his family Shri Madan Lal was a party interested in the evict on order and was entitled to execute it. In Vasder v. S. Sohan Singh, it was held that the legal representatives of a landlord for whose benefit the order of eviction was passed were competent to execute that order after the death of the landlord. The authorities, Dr. Muhammad Ibrahim v. Rahiman Khan and Moti Lal Panna Lal v. Kailash Narain, cited by the learned Counsel for the appellant, were considered by and were distinguished. I have nothing to add what was said by Mr. Justice M. M. Ismail about the aforesaid two authorities in 1968 Delhi Law Times 492 [LQ/DelHC/1967/141] . The learned Counsel for the appellant had also cited Dwarkanath Jagannath Gupta and Another v. Amarnath Gopinath. This authority has no applicability to the facts of the present case. In that authority, the landlord had filed an application for eviction of the tenant on the ground of personal bonafide requirement. During the pendency of the application, the property occupied by the tenant had been allotted on partition to some other party. I was held that the landlord could not continue the application as after partition the property had vested in another person and the landlord had ceased to be landlord qua the property.

8. The third contention of the learned Counsel for the appellant was that the provisions of Order 21 Rule 16 C. P. C. were not applicable to the application filed by Shri Madan Lal and Mr. Harish Chand as the order of eviction passed by the Additional Controller was not a decree within the meaning of that Code. Section 42 of the Delhi Rent Control Act provides that an order made by the Controller or an order passed on appeal under the Act shall be executed by the Controller as a decree of the Civil Court and for this purpose the Controller shall have all the powers of a Civil Court. By virtue of the provisions of Section 42, Rule 16 of Order 21, C. P. C. will apply to the execution of the orders passed under the Delhi Rent Control Act, though the order are not decrees. The contention of the learned Counsel for the appellant that the provisions of Rule 16 aforesaid did not apply to the application filed by Shri Madan Lal and Harish Chand is to be rejected.

7. No other point was urged in this appeal which is dismissed with costs. The respondent is granted three months time to vacate the premises.