Manohar Lall, J.The important question for decision in this appeal by the judgment-debtor is whether a Court executing a decree passed by a civil Court for ejectment of a tenant from a house can declare the decree as null and void in view of the provisions of the Bihar House Rent Control Order, 1942, hereinafter to be called the Control Order. The facts are not in dispute. The respondent-decree-holder is the owner of the house which was let out to the appellant as a tenant. The respondent instituted a suit for recovery of rent for the period February 1942 to August 1942 and obtained a decree on 4th November 1943, at a rental slightly lower than that which was claimed by the plaintiff. During the pendency of the suit the plaintiff served upon the defendant a notice to quit the house--the notice is dated 1st June 1942. The defendant not having vacated the house, another suit was instituted by the plaintiff in which he claimed a decree for ejectment and also arrears of rent and damages for the period after August 1942. That suit was decreed ex parte on 27th April 1944. The decree-holder proceeded to execute that decree before the first Subordinate Judge of Patna when an objection was filed by the judgment-debtor u/s 47, Civil P.C., to the effect that the decree for ejectment from the house is not executable as the civil Court has no power to give effect to that decree in view of the provisions of the Control Order read with Rule 81, Sub-rule 2, Clause (bb), Defence of India Rules.

2. The learned Subordinate Judge took the view that the Control order does not take away the power of the civil Court to execute a decree for ejectment passed by it in a suit filed by the owner of the house for ejectment of the tenant on the ground that he has wilfully neglected to pay the stipulated rent. It was also contended before the learned Subordinate Judge that it is only the Controller, as defined in Section 2, Clause (b) of the Control Order, who can pass order for recovery of possession of a house by the owner from the tenant, and reliance was placed upon Section 13 of the Control Order which enacts that

no order for the recovery of possession of any house shall be made so long as the tenant pays or is ready and willing to pay rent to the full extent allowable by this order and performs the conditions of the tenancy.

3. The learned Subordinate Judge decided that the objection was not maintainable in the execution department because if there was any illegality in the order for ejectment that was embodied in the decree passed: in the original suit the remedy of the applicant was to go in appeal against the decree for ejectment and get the decree set aside. Accordingly he dismissed the objections. Against this decision there was an appeal to the District Judge who took the same view. Hence the second appeal to to this Court.

4. The learned Government Pleader in support of his contention did not rely on Section 13 of the Control Order, but relied upon Section 14, Sub-clause (3). Now, that Sub-clause provides that the decision of the Commissioner and subject only to such decision, an order of the Controller shall be final, and shall not be questioned in any Court. In this case admittedly there is no order of the Controller. I fail to see how the provision of Section 14 (3) can have any application in the present case or can be of any assistance to the judgment-debtor. The learned Government Pleader sought to develop this argument by relying upon Section 14, Defence of India Act, which runs as follows:

Jurisdiction of ordinary Courts. (1) Except as may be provided in this Act or in any rule made thereunder or in any order made under any such rule by the Central Government or the Provincial Government or by an officer not below the rank of Collector empowered under Sub-section (4) or Sub-section (5) of Section 2 to make such order, the ordinary criminal and civil Courts shall continue to exercise jurisdiction.

For the removal of doubts it is hereby declared that any provision in any such rule or order as aforesaid to the effect that the decision of any authority, not being a Court, shall be final or conclusive shall be a sufficient excepting provision within the meaning of Sub-section (1).

5. It is, therefore, argued that the effect of the provision of Section 14 is that the exclusive power is now vested with the Controller appointed under the Control Order and that the jurisdiction can no longer be exercised by the civil Court. In my opinion, this argument is not sound. I do not find any provision in any of the sections of the Control Order which takes away the jurisdiction of the civil Courts. The only jurisdiction taken away is that the order of the Controller when made shall be final and shall not be questioned in any Court.

6. Now, it is well-settled law that the exclusion of the jurisdiction of the civil Courts is not to be readily inferred but that such exclusion must either be explicitly expressed or clearly implied, and it is also well settled that even if jurisdiction is so excluded, the civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure: per Lord Thankerton in AIR 1940 105 (Privy Council) . That was a case under the Sea Customs Act of 1878. The plaintiffs were assessed by the Assistant Collector of Customs, Madras, at 371/2 per cent. on tariff valuation as to some of the bags, and as to the remaining bags they were informed that they will be liable to pay duty at 45 per cent. on different tariff valuation. The plaintiffs appealed against that decision and the appeal was dismissed by the Collector of Custom. The Government of India when moved in revision confirmed the Collectors decision. The suit giving rise to the appeal was then instituted to recover the excess amount collected from the plaintiffs by levying duty as already stated. The learned Subordinate Judge came to the conclusion that by reason of the relevant provisions of the Sea Customs Act he had no jurisdiction to entertain the suit. The High Court reversed that decision, but their Lordships of the Judicial Committee came to the conclusion that the levying of the duty was exclusively within the jurisdiction of the Collector of Customs and the jurisdiction of the civil Court was barred. It will be noticed that in that case a duty had been levied and the plaintiffs wanted a refund of the duty.

7. In the present case I have already stated that there is no order passed by the Controller which stands in the way of the jurisdiction of the civil Court. It is true that their Lordships held in that case that the jurisdiction of the civil Court was excluded by the order of the Collector of Customs on the appeal u/s 188, and it may perhaps be argued that as the order of the Controller in the present case is final it should be held that the jurisdiction of the civil Court is excluded. But it is to be observed, as was pointed out by their Lordships at p. 237 that the main principles to be observed in such cases are to be found in the well known judgment of Willes J. in Wolverhamption New Water Works Co. v. Hawsford (1859) 6 C.B. 336 approved by the House of Lords in Neville v. London Express Newspaper, Ltd. (1919) A.C. 368 and that the question is whether the case falls under the third class stated by Willes J., that is to say, "where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it"; and it has been always held that with respect to this class the party must adopt the form of remedy given by the statute. It may be observed that no liability which was not existing before is being created by the Control Order so that it can be held that the party must adopt the form of remedy given by the Control Order. It seems to me that in this case merely an alternative remedy is provided which any party can avail himself of, and if the party thus avails himself of that alternative remedy then and then alone the order of the Controller is final subject to investigation by civil Courts as stated above. After examining a number of other cases which were cited on behalf of the plaintiffs and the provisions of Section 32, Government of India Act, 1915, their Lordships observed that

neither Section 32 nor the principle involved in the decision in Secy. of State v. Moment, J. 40 Cal. 391 affect the validity of an Act of the Indian Legislature which creates an obligation and provides an exclusive Code for its determination; such an obligation is not covered by Sub-section (2) of Section 32.

8. As I have just stated the Control Order does not create an independent or a new obligation so that it can be held that it provides an exclusive Code for the determination of that obligation. Reference may also be made to the case in AIR 1938 219 (Privy Council) where Sir George Rankin in delivering the judgment of the Board pointed out the method of determining the exclusion of the jurisdiction of the civil Court in matters which have been expressly provided to be determined by the revenue Courts only, and regarding matters which may incidentally arise in an ordinary suit for a declaration of title to immovable property. His Lordship observed at p. 309 that "on principle it is for the civil Court to determine in the last resort the limits of the powers of a Court of special jurisdiction." It may be observed further that the conditions of Section 13, Control Order, have been complied with in that the decree for ejectment has been passed by the civil Court after it was found that the tenant had not paid the rent due from him. We pointed out a possible remedy to the tenant u/s 4, Control Order. This appears to obviate any conflict between the civil Court and the Controller. For the reasons I am of opinion that the contention raised by the learned Government Pleader has been rightly negatived by the Courts below.

9. The matter may be looked at in another way also. No objection as to the jurisdiction of the civil Court was raised by the defendant in the suit. When the jurisdiction of the civil Court has not been questioned by anybody the executing Court is only allowed within narrow limits to declare the decree as being invalid: see Gora Chand Haldar and Another Vs. Prafulla Kumar Roy and Others, . It is not shown here that the civil Court on the face of it had no jurisdiction whether pecuniary or territorial or in respect of the person of the judgment-debtor to make a decree. There is a well recognised distinction between inherent want of jurisdiction in a Court and want of jurisdiction on grounds which require determination by the Court itself: see Girwar Narayan v. Kamla Prasad AIR 1933 Pat. 104.

10. The learned Government Pleader relied upon the case of Somokanta Mohonta and Others Vs. Sarveswar Das and Another, . In that case in the course of liquidation of a co-operative society the liquidator directed payment of Rupees 1000 by each of two members of the executive committee of the society, and these two gentlemen sought to recoup themselves by suing the other members of the society for the recovery of these sums. In these circumstances, it was held that the decree passed by the Munsif and the orders made by him in execution of that decree should be set aside as being null and void. Section 42 (6), Co-operative Societies Act of 1912, specifically provides that "save in so far as hereinbefore expressly provided no civil Court shall have any jurisdiction in respect of any matter connected with the dissolution of a registered society under this Act".

11. It was obvious that the jurisdiction of the civil Court was expressly barred by statute and, therefore, the attempt on the part of the two members of the executive committee to pass on their liability to the other members of the society was a matter connected with the dissolution of the society, and it was not a matter in respect of which the civil Court had any jurisdiction. This case does not help the appellant as it is merely an illustration of the principle which I have endeavoured to trace out above that where the jurisdiction of the civil Court is expressly barred in respect of a new obligation, and a new Code is provided for its determination, the matter can only be decided by the newly created tribunal. In the present case before us no new obligation has been created and there has been no decision or order by the Controller, unlike this Calcutta Somokanta Mohonta and Others Vs. Sarveswar Das and Another, where there was an order by the liquidator who was empowered to make that order under the Co-operative Societies Act.

12. Finally it may be observed that where a right exists, the presumption is that it can be enforced by a civil Court and the onus is on the defendant to show that the jurisdiction of the civil Court is ousted or that some other Court has exclusive jurisdiction to entertain that determination: Mary Board v. William Board AIR 1919 P.C. 233.

13. In the present case, in my opinion, the appellant has not shown that the Controller alone has the exclusive jurisdiction to determine the matter so that the decree passed by the civil Court was without jurisdiction.

14. I would dismiss this appeal with costs.

Das, J.

15. I agree, and would like to add a few observations about Section 13, Control Order. It is not very clear from the wording of the section if the "order for the recovery of possession of any house" referred to therein means an order by the Controller under any of the provisions of the Control Order, or means any order for the recovery of possession of any house--passed either by the civil Court or the Controller. If the section is interpreted in the wider sense--and I must say that it is capable of bearing that wider meaning--, even then the bar of Section 13 should have been pleaded in the suit, and not in execution. Section 13 does not oust the jurisdiction of the civil Court: it merely states that unless certain conditions are fulfilled, no order for recovery of possession can be made. Whether those conditions have been fulfilled or not, have to be decided at the trial, and cannot be enquired into in execution; for that would be going behind the decree, which the executing Court cannot do. As to Section 14, Control Order, and Section 14, Defence of India Act, I agree with my learned brother.