(Prayer: Appeal (disposed of on 13-8-1948), against the order of the City Civil Court, Madras dated 27-9-1947 in E.A. No. 1402 of 1947 in E.P. 252 of 1947 in O.S. No. 169 of 1940.)

The matter arising in this civil miscellaneous appeal is whether in view of the provisions of S. 7 of Madras Act XV of 1946 the defendants are able to resist the execution of the decree for eviction passed in O.S. No. 169 of 1940.

An agreement was entered into between the plaintiffs and the defendants, who belong to one family, whereby the plaintiffs were to own the whole of the family housewhich is the subject matter of the disputeand in return for which they executed a promissory note in favour of the defendants. The defendants were however allowed to remain in possession of two rooms as tenants of the plaintiffs, the further arrangement being that the interest due on the promissory note executed by the plaintiffs in favour of the defendants should be set off against the rent due for the two rooms. The plaintiffs alleged that not only did the tenants fail to pay the rent and that the tenancy was therefore at an end; but that they had trespassed into a third room. It was finally held in Letters Patent Appeal that although the plaintiffs and the defendants had not become divided and that the family house still remained technically an asset of the joint family, so that the plaintiffs and the defendants were tenants-in-common; yet in view of the fact that the defendants had agreed to hold the two rooms as tenants of the plaintiffs and to pay a rent there for, it was not open to them under S. 116 of the Evidence Act to deny the right of the plaintiffs as long as they were in possession. The Court therefore confirmed the decree of the Court below evicting the defendants from these two rooms.

The plaintiffs attempted to execute their decree and were met with obstructive tactics at every stage. On 15th July 1947, in the absence of the judgment-debtor, E.P. No. 252 of 1947 was ordered to be executed. The defendants then filed various applications which dragged on the proceedings until Madras Act XV of 1946 had become law. E.A. No. 1402 of 1947, the order on which is now under considertion, was filed for a short stay of execution pending an application for review of the High Court. During the course of that application the defendants drew the attention of the Court to the provisions of S. 7 in Madras Act XV of 1946 and said that the Court had no jurisdiction to evict them. That application was in due course dismissed. Hence this appeal.

Section 7 of Madras Act XV of 1946 makes provision for the remaining in possession of a tenant, unless he has done something which would disentitle him to do so. The various acts which would disentitle him are set out in Sub-S. (2). S. 7(1) shows that the Act applies to tenants against whom a decree for eviction has been passed as well as to other tenants. There can be no doubt that the fact that the plaintiffs obtained a decree long before the Act came into force would not entitle them to dispossess the defendants. Strictly speaking, the appellants were not tenants; but were estopped from contending so because of the provisions of S. 116 of the Evidence Act. The definition of tenant in this Act would however make the defendants tenants within the meaning of the Act; because a tenant according to S. 2(4) means any person by whom rent is payable. Because of the estoppel, the defendants are bound to pay rent to the plaintiffs as long as they remain in possession.

Ordinarily the earlier order in the same execution proceedings passed on 15th July 1947 would operate as constructive res judicata with regard to the some matters raised at subsequent stages of the execution application; but where an order is passed by a Court without jurisdiction, that would not necessitate the Courts again acting without jurisdiction. In other words, an order passed without jurisdiction in an earlier proceeding or at an earlier stage in the same proceeding would not operate as res judicata in a subsequent proceeding or at a later stage of the same proceeding. This principle has been well accepted, and it is unnecessary to quote a large number of decisions to that effect. Reference may however be made to Madhavarao v. Papayya (I.L.R. 1946 Mad. 760) in which this principle was laid down with regard to a decree passed in a suit which was alleged in a subsequent suit to operate as res judicata . Similarly, in Gajaddhar Prasad v. Firm Manulal Jayarnath Prasad (4 Pat. 440) it was held that an order which was ultra vires would not operate in subsequent proceedings as res judicata.

The only other question remaining is whether an appeal lies against the order of the lower Court refusing to stay execution. That question was fully considered in Veera Raghavayya v. Ratamma (1948) 1 M.L.J. 425 = 61 L.W. 392). It is argued that decision of a single Judge is not correct, and various decisions of other High Courts have been quoted in support of that contention. There was a difference of opinion in the High Courts of Allahabad and Calcutta on the one hand and that of Lahore and this High Court in Subramania Pillai v. Kumaravelu Ambalam (39 Mad. 541) [LQ/MadHC/1915/94] on the other. The judgment in Veera Raghavayya v. Ratamma (1948) 1 M.L.J. 425 = 61 L.W. 392) does not refer to the Full Bench decision in Chidambaram Chettiar v. Krishna Vathiar (40 Mad. 233 [LQ/MadHC/1916/300] = 5 L.W. 132 (F.B.) where the learned Judges had to consider the scope of the present S. 47 as compared with that of S. 244 of the old Code. They discussed various decisions of other High Courts and came to the conclusion that,

the scheme of the corresponding S. 47 of the present Code is not to specify any particular questions at all, but to include all questions relating to the execution, discharge or satisfaction of a decree as being within its scope.

Phillips, J. who delivered a dissenting judgment, referred to Subramania Pillai Kumaravelu Ambalam (39 Mad. 541) [LQ/MadHC/1915/94] relied on by the learned Judge in Veera Raghavayya v. Ratamma (1948) 1 M.L.J. 425 = 61 L.W. 392) and dissented from it. The majority however followed Subramania Pillai v. Kumaravelu Ambalam (39 Mad. 541) [LQ/MadHC/1915/94] . There can therefore be no doubt as regards the law in this High Court. The learned Advocate for the respondents has cited Malmal Vitil Krishnan Nair v. Kavalappara Moopil Nair (27 M.L.J. 171) in which it was held that there was no appeal against an order by the Appellate Court refusing to stay execution under O. 41, R. 5; but the learned Judges came to that conclusion because the application under consideration was not one filed in the Court executing the decree. They held that S. 47 applied only to orders passed by the Court executing the decree.

In the view taken by the lower Court, it was unnecessary to consider whether on any of the grounds set out in S. 7(2) of the Madras Act XV of 1946 the landlords were entitled to evict the tenants. That question will now however have to be considered in view of the above findings.

The appeal is therefore allowed and E.A. No. 1402 of 1947 remanded for disposal in the light of the provisions of S. 7 of Madras Act XV of 194

6. The costs will abide the result.