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Case Number

A.A.A.No.124 of 1975

Attorney(S)

For the Appellant: R. Srinivasan, Advocate.
For the Respondent: S.M. Abdul Wahab, Advocate.

Judges

Mr. Justice G. Ramanujam

Acts

Section 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act
provisions of Section 30 of the Rent Control Act.
provisions of the Rent Control Act.
Section 30 of the Rent Control Act
Section 10 of the Rent Control Act,
Section 7 of the Rent Control Act
Rent Control Act

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Smart Summary

Structured Summary of the Legal Opinion

Factual and Procedural Background

The respondent obtained a decree dated 12 April 1973 for eviction of the appellant in O.S. No. 7420 of 1971 before the City Civil Court, Madras. The decree granted the appellant four months to vacate. Execution proceedings were initiated in E.P. No. 622 of 1974 (execution petition filed 5 March 1974; execution put into motion on 5 August 1974). Meanwhile, the Tamil Nadu Buildings (Lease and Rent Control) Act was amended by Act XXIII of 1973 (effective 30 June 1973), by which Section 30 was altered so that the building in question came within the Rent Control Act for the first time. The appellant contended before the executing Court that the decree could not be executed after the amending Act came into force. The executing Court rejected this objection; the lower Appellate Court upheld the executing Court's view, holding that the decree-holder had a vested right and could execute the decree. The tenant-appellant challenged those decisions in the present appeal.

Legal Issues Presented

Whether, once the Rent Control Act became applicable to the building (by virtue of the amendment to Section 30), the executing court is barred by Section 10 of the Rent Control Act from executing an earlier civil court decree for eviction.
Whether the executability of a decree for eviction is determined independently of the decree's validity when a statutory change brings the premises within the scope of rent control legislation.

Arguments of the Parties

Appellant's Arguments

The appellant did not contend that the amending Act was retrospective in order to unsettle vested rights. Rather, his contention was procedural: once the amending Act made the building fall under the main Rent Control Act, Section 10 applied and prevented eviction "whether in execution of the decree or otherwise" except in accordance with Sections 14–16 of the Act.
Therefore, even though the decree remained valid, it could not be executed by the civil executing court; the proper remedy for the decree-holder (respondent) was to pursue eviction only under the statutory procedure in the Rent Control Act.
The appellant relied on the decision in Thalai Vadivu Anandar v. Venugopala Chettiar to support the contention that the decree could not be executed after the Act became applicable.

Respondent's Arguments

The respondent relied on the Division Bench decision in Killick Nixon Ltd. v. V.B. Narayana Rao ((1974) 1 M.L.J. 16 (S.N.)) to contend that the amending Act was not retrospective and therefore could not impair rights already accrued under earlier decrees; accordingly, executability of a previously obtained decree should not be defeated by the amending Act.
Implicitly, the respondent maintained that the decree remained executable because its validity was not affected by the amending Act.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Thalai Vadivu Anandar v. Venugopala Chettiar	Where a Rent Control Act provision (Section 7 in that case) became applicable to premises before execution, the executing court must apply the statutory provision and cannot order eviction contrary to it; applicability of the Rent Control Act can render execution improper even if the decree was passed earlier.	The Court treated this decision as directly in point and as supporting the conclusion that, once the Rent Control Act applied to the building, the executing court was bound by Section 10 and therefore powerless to execute the earlier decree for eviction.
Killick Nixon Ltd. v. V.B. Narayana Rao ((1974) 1 M.L.J. 16 (S.N.))	The amending Act (Act XXIII of 1973) has no retrospective effect and does not take away rights accrued under orders or proceedings initiated before the amending Act; the validity of earlier decrees is not thereby invalidated and executability may be considered separately at execution stage.	The respondent relied on this precedent to argue that the executability of the earlier decree could not be questioned simply because the amending Act was not retrospective. The Court considered and distinguished this decision, holding it did not assist the respondent with respect to executability once the Act applied at the time of execution.

Court's Reasoning and Analysis

The Court framed the narrow issue before it as whether the executing Court was powerless to execute the decree for eviction in view of Section 10 of the Rent Control Act once the Act became applicable to the building. The Court expressly disclaimed any need to decide whether the amending Act was retrospective or could unsettle vested rights; the appellant did not argue that the decree was invalidated retrospectively.

The Court then applied the temporal facts to the statutory rule: the amending Act (Act XXIII of 1973) came into force on 30 June 1973, thereby bringing the building within the Rent Control Act. The execution petition was filed on 5 March 1974 — after the amending Act had taken effect. Section 10 of the Rent Control Act, the Court observed, prohibits eviction of tenants "either in pursuance of a decree or otherwise" except by following the eviction procedure laid down in the Rent Control Act (Sections 14–16). Because Section 10 operated at the time the executing court was asked to act, the executing court could not lawfully ignore the statutory prohibition and proceed as if there were no restriction.

The Court found direct authority in the Division Bench decision in Thalai Vadivu Anandar v. Venugopala Chettiar, which held that an executing court must apply the rent-control statute applicable at the time of execution and cannot permit eviction that the statute forbids. The Court contrasted this with Killick Nixon Ltd. v. V.B. Narayana Rao: while that case held the amending Act was not retrospective and that the validity of prior decrees need not be upset, it did not resolve the executability issue — which the Killick Nixon Bench expressly left to the execution stage. Thus Killick Nixon did not assist the respondent on the precise question of whether execution could proceed after the Act applied.

On this analytical basis, the Court concluded that the validity of the decree and its executability are distinct issues: the decree could remain valid but nonetheless cease to be executable while the Rent Control Act applied to the premises, because Section 10 placed a statutory bar on eviction save by the Act's own procedure.

Holding and Implications

Appeal allowed: The decree for eviction is valid but not executable while the provisions of the Rent Control Act apply to the building.

Implications:

Direct effect on the parties: The trial decree (O.S. No. 7420 of 1971) remains valid on its face, but the executing Court is barred from executing that decree so long as the Rent Control Act (as amended) applies to the building. The decree-holder cannot enforce eviction by ordinary execution proceedings and must, if appropriate, seek eviction only under the statutory procedure prescribed by the Rent Control Act.
Costs and procedural notes stated in the opinion: "There will be no order as to costs. No leave." (as recorded in the opinion).
Broader precedent: The Court relied on existing precedent (Thalai Vadivu Anandar) to apply the statutory bar on execution; the opinion did not purport to lay down a new general rule beyond applying Section 10 to the facts. The decision distinguishes Killick Nixon and clarifies that questions of validity and executability are distinct and may be governed by subsequent statutory changes that apply at the time of execution.

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Chand Basha v. Pyari Bi

1. The respondent herein obtained a decree dated 12th. April, 1973 for eviction of the appellant herein O.S. No.7420 of 1971 an the file of the City Civil Court, Madras. The decree granted the appellant four months' time to vacate. On 5th August, 1974 the said decree was put into execution in E.P.No. 622 of 1974. By that time Section 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act here in after referred to as the main Act was amended by Act XXIII of 1973. As a result of the said amendment, the building in respect of which the decree for eviction was obtained by the respondent in the said suit came within the purview of the main Act. Taking advantage of that situation, the appellant contended before the executing Court that the decree for eviction cannot be executed after the coming into force of the Amending Act. This objection was, however, refected by the executing Court, and the execution proceedings were allowed to go on.

2. On appeal, the lower Appellate Court also agreed with the view of the executing Court and held that under the decree for eviction passed earlier to the coming into force of the amending Act, the respondent decree-holder had acquired a vested right, that such vested rights cannot be taken away except by giving retrospective effect to the amending Act, and that therefore the decree-holder is entitled to execute the decree for eviction notwithstanding the amending Act. The view taken by both the Courts below has been challenged in this appeal by the tenant-appellant.

3. According to the learned Counsel for the appellant the Courts below have not properly appreciated the contention put forward by him. He states that it is not his case that the amending Act is retrospective in character so as to unsettle or take away any vested right. His contention before the Courts below was that in view of the amending Act the provisions of the main Act will apply to the building in respect of which the decree for eviction has been obtained by the respondent, and that as such the executing Court can-not execute the decree for eviction in the face of Section 10 of the main Act which specifically says that a tenant shall be evicted whether in execution of the decree or otherwise, except in accordance with the Sections 14 to 16 of the Act. According to the learned Counsel it is not necessary for him to question the validity of the decree on the ground that the amending Act is retrospective in character, and it is enough for him to show that notwithstanding the validity of the decree it cannot be put into execution in view of section 10 of the principal act. The learned Counsel for the appellant relies on a Bench decision of this Court in Thalai Vadivu Anandar v. Venugopala Chettiar , in support of his contention that the decree in this case cannot be executed after the coming into force of the amending Act.

4. A perusal of the judgment of the Courts below indicate that they have come on a wrong track as pointed out by the learned Counsel for the appellant. We are not concerned in this case as to whether the amending Act can unsettle or disturb vested rights. The point urged by the learned Counsel for the appellant is that by virtue of Section 10 of the Rent Control Act, the executing court cannot evict the tenant in pursuance of the decree obtained by the respondent and that the remedy of the decreeholder is only to proceed to evict the tenant under the provisions of the Rent Control Act. His contention is not that the decree has become a nullity as a result of the retrospective operation of the amending Act. Therefore, the only question that is to be considered in these proceedings is to see whether the executing Court is powerless to execute the decree for eviction in view of Section 10 of the Act.

5. It is true, the respondent has obtained a decree for eviction against the appellant in O.S. No. 7420 of 1971, and the four months period given to the appellant to vacate had expired, and as such be is entitled to put the decree into execution. In this case the execution petition was filed on 5th March, 1974. But however, even on 20th June, 1973 the amending Act XXIII of 1973 had come into force as a result of which section 30 of the principal act came to be amended. The result of the amendment is that the buildings constructed more than five years before would be governed by the provisions of the main Act. As a result of the change in the statutory provisions, the building in respect of which the decree for eviction has beer obtained earlier by the respondent has come to be governed by the provisions of the Act for the first time. The question is whether the change brought about in the statute has affected the powers of the executing Court in view of Section 10 which applied to the building with effect from 30th June, 1973, the date of the amendment of Section 30.

6. The execution petition was filed on 5th March, 1974 and on that date the provisions of the Act applied to the building in question. Section 10 prohibited the eviction of tenants in execution of decrees or otherwise, except by invoking the procedure for eviction laid down under the provisions of the Rent Control Act. The executing Court cannot ignore a statutory provision which prohibits eviction of a tenant except in certain stated circumstances and proceed to execute the decree as if there is no restraint on its power. I am inclined to agree with the contention of the learned Counsel that in view of Section 10 of the Act which applies to the building with effect from 30th June, 19/3, the executing Court is powerless to execute the decree for eviction obtained earlier by the respondent.

7. This view of mine finds support from the decision of a Division Bench of this Court in Thalai Vadivu Anandar v. Venugopala Chettiar , which is directly in point. In that case a suit had been filed for recovery of possession of certain property with past and future rents against the person in occupation. As a result of a compromise in that suit, there was a decree directing the defendant to deliver possession of the property on a particular day. As the defendant failed to deliver possession by the prescribed date, the plaintiff sought execution of the decree for delivery of possession and delivery was also ordered by 10th of June, 1954 by the executing Court. The defendant at that stage filed an application for stay of the execution of the order on the ground that the Rent Control Act had since been extended to the village in which the property was situate on and from 16th of June, 1954, and that therefore, the decree-holder cannot evict him. The executing Court overruled that objection and directed delivery. Against that order the tenant appealed but without success. There was a Civil Miscellaneous Second Appeal to this Court which was allowed by Panchapakesa Ayyar, J. The learned Judge after an elaborate discussion of the several decisions cited before him held that Section 7 of the Rent Control Act which become applicable to the building from 16th June, 1964 was a complete answer to the claim of the decree-holder for eviction of the tenant. The decision of Panchapakesa Ayyar, J., was questioned in a letters patent appeal. Rajamannar, CJ., speaking for the Division Bench, has taken the view that as by the time of filing the execution petition the Rent Control Act had been extended to the village in which the property was situated, the executing Court was bound to apply the provisions of the Act and that any eviction even in the Pending execution petition will be contrary to Section 7.The decision in that case squarely applies to the facts of this case. When the decree for eviction was passed by the trial Court in this case, the Rent Control Act did not apply to the building in question. But by the time the decree passed in that suit could be executed, the Rent Control Act came to be applied to the building in question as a result of the amending Act XXIII of 1973. Therefore, the executing Court is under a duty to apply the provisions of the statute which have come into force, and it cannot overlook the specific prohibition contained in section 10 of that act which says that no tenant shall be evicted either in pursuance of a decree or otherwise, except under the provisions of the Rent Control Act. Therefore, even though the decree passed in the suit is valid and its validity is not affected by the provisions of the amending act, it has ceased to be executable so long as the Rent Control Act is applicable to the building in question.

8. The learned Counsel for the respondent would however rely on a decision of a Division Bench of this Court in A.S.No. 518 of 1973 reported in Killick Nixon Ltd. v. V.B. Narayana Rao. (1974) 1 M.L.J. 16 (S.N.) in support of his contention that as the provisions of the amending act are not retrospective, the executability of the decree passed earlier cannot be questioned. In that case there was a suit in ejectment after termination of the tenancy in respect of a building in Madras City, as the building, having been constructed after 1960, stood exempted under the provisions of Section 30 of the Rent Control Act. The Court passed a decree for possession. The matter was taken on appeal to this Court. When the appeal was pending Section 30 of the Rent Control Act was amended so as to withdraw the exemption granted in respect of buildings constructed before a particular date. The result was the exemption under section 30 of that act was not available in respect of the building. At the stage of the appeal it was urged by the tenant that in view of the withdrawal of the exemption under Section 30, the building is governed by the provisions of the Rent Control Act, and therefore, the decree in ejectment passed by the trial Court has to be set aside by the appellate Court. This Court considered the scope of the amending Act XXIII of 1973 which came into force on 30th June, 1973 and held that the amending Act has no retrospective effect and therefore it cannot take away the rights which have already accrued to the parties as a result of orders in proceedings initiated earlier to the coming into force of the amending Act, that as the amending Act does not indicate as to what is to happen to the decisions of civil Courts rendered prior to the amendment, it should be taken that it does not affect the pending proceedings or the decisions rendered therein. In that view the Court held that the decree in ejectment passed against the tenant had not been invalidated by the amending Act, and therefore, the appellate Court was at liberty to dispose of the appeal on merits, leaving the question of executability of the decree to be considered at the execution stage. A perusal of the said judgment shows that the Court felt that it was unnecessary at that stage to go into the question of executability of any decree that may be passed, that the validity of a decree is one thing, and that its executability is another, and that the Court in passing a decree is not concerned with its executability. I do not see how the said decision will help the respondent in this case. In that case the contention urged by the tenant was that after coming into force of the amending Act which withdrew the exemption granted to the building under Section 30 of the Act no decree in ejectment could be passed by a civil Court. This contention has been rejected by the Division Bench on the ground that as the amending Act does not touch or affect the proceedings that might have been initiated earlier in the civil Court, it cannot be taken that all the earlier decrees can be said to be nullified by the amending Act, and that the question of executability has to be decided at the stage of execution with reference to the provisions of the amending act. In that case, the attack against the decree based on the provisions of the amending act was held unsustainable, without going into the question of the executability of the decree. Such a question has been decided as already stated, specifically in Thalai Vadivu Anandan v. Venugopala Chettiar . I have to therefore allow this appeal holding that the decree passed in O.S.No. 7420 of 1971, even though valid, is not executable so long as the provisions of the Rent Control Act continue to apply to the building. There will be no order as to costs. No leave.

Chand Basha v. Pyari Bi

Structured Summary of the Legal Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Chand Basha v. Pyari Bi

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