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E. Mohanlal v. S.M Thirumalai Chettiar
Structured Summary of the Opinion
Factual and Procedural Background
This revision challenges an order of the District Munsif, Ootacamund, which allowed E.A. No. 8 of 1984 under Order XXI, Rule 47 read with S.151 of the Civil Procedure Code (execution application). The revision petitioner is the decreeholder who obtained a decree for recovery of possession in O.S. No. 203 of 1974 (suit filed on 12-7-1974), with the decree ultimately passed on 19-6-1976. The respondent (defendant in the suit) filed an application under S.47 read with S.151 C.P.C. contending that he had pleaded entitlement to protection under the Tamil Nadu Buildings (Lease and Rent Control) Act (the Act) in his written statement and that his remedy was before the Rent Controller. The respondent asserted that the building’s construction was completed on 1-4-1971, that the five-year exemption under S.30(1) of the Act expired on 31-3-1976, and that from 1-4-1976 he became a statutory tenant entitled to the Act’s benefits; therefore, the decree dated 19-6-1976 was not executable under S.10 of the Act. The District Munsif accepted the respondent’s contention and allowed E.A. No. 8 of 1984, prompting this revision by the decreeholder.
Legal Issues Presented
- Whether the plaintiff (decreeholder) is entitled to execute the decree for ejectment when the five-year exemption period provided under S.30(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act had expired by the time the execution petition was filed.
Arguments of the Parties
Respondent's Arguments (as recorded in the opinion)
- The respondent had specifically pleaded in his written statement in O.S. No. 203 of 1974 that he was entitled to the benefits of the Tamil Nadu Buildings (Lease and Rent Control) Act and that eviction proceedings should lie before the Rent Controller.
- The building was completed on 1-4-1971 and assessed to property tax from that date; the five-year exemption under S.30(1) expired on 31-3-1976, making him a statutory tenant from 1-4-1976.
- Consequently, the decree dated 19-6-1976 is not executable by virtue of S.10 of the Act, and he is entitled to continue in possession.
Revision Petitioner’s Arguments (as recorded in the opinion)
- The provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (as amended by Act 23 of 1973), do not operate to defeat execution of the decree dated 19-6-1976, which was confirmed by the District Court and the High Court.
- The building was exempt under S.30(1) of the Act at relevant times and the suit was instituted on 12-7-1974 after commencement of the amended Act and resulted in a valid decree; no subsequent amendment changed the law applicable to the rights of the parties.
- The expiry of the five-year period does not render the suit incompetent, nor nullify or make the decree inexecutable; the decreeholder’s rights are vested and cannot be taken away by the Act as administered.
- The tenancy had been terminated by a valid notice and the suit (filed 12-7-1974) sought recovery of possession; the respondent did not have tenant status from 1-5-1974. The decree also included damages for use and occupation.
- The petitioner prayed for dismissal of the execution application filed by the respondent and for permission to proceed with execution of the decree.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court (as stated in the opinion) |
|---|---|---|
| Tahali Vadivu Anandar v. Venugopala Chettiar, 1960-1-M.L.J. 356 | Authority relied upon by the lower court to hold that a decree may be inexecutable under S.10 of the Act. | The District Munsif relied on this decision to find the decree not executable; the High Court treated it as earlier authority which this Court later considered of no avail in face of later Supreme Court decisions. |
| Chand Basha v. Payrib, 1978-1-M.L.J. 46 | Authority relied upon by the lower court concerning non-executability under S.10. | Relied on by the lower court to refuse execution; this Court found it could not prevail against later Supreme Court authority. |
| Krishnasami v. Rasheeda, 93 L.W. 378 = 1980-2-M.L.J. 463 | Earlier decision holding that decree could be inexecutable in view of S.10. | Relied upon by the lower court; this Court considered such earlier rulings not helpful in view of later Supreme Court decisions. |
| Arunachala v. Kesava Chettiar, 96 L.W. 277 = 1983-2-M.L.J. 166 | Decision contrary to other rulings on executability under the Act. | Not followed by the lower court; cited in the opinion as a contrary single-judge ruling. |
| Akkanaicker v. Rajagopalammal | Prior decision relied upon (by the judge who wrote this opinion) in which Vineet Kumar was followed and the decree was held not executable. | Mentioned as an earlier decision by the same court/judge which followed the view that the decree was not executable; this position was revisited in the present opinion in light of later Supreme Court authority. |
| Vineet Kumar v. Mangal Sain Wadhera | Supreme Court authority previously relied upon in support of non-executability where statutory protections arise after institution of suit. | This Court (in earlier cases) had relied on Vineet Kumar to hold decrees inexecutable; in the present opinion the Court states that later Supreme Court decisions have caused such earlier reliance to be of no avail. |
| Madras Wines v. B. Abraham, 1985 T.L.N.J. 89 = 98 L.W. 373 | Decision taking the view that a decree was not executable (Nainar Sundaram, J., took the same view in that matter). | Referred to as an instance where a similar view (non-executability) was taken; this Court now treats those earlier decisions as not prevailing over later Supreme Court rulings. |
| S.N. Kuba v. P.P.I. Vaithianathan | Division Bench decision holding that certain earlier decisions were obviated by subsequent Supreme Court authority (Nand Kishore Marwah). | Cited by the learned counsel for the revision petitioner as a Division Bench holding that later Supreme Court authority changed the legal position; this Court treated that Division Bench reasoning as supportive of the revision. |
| Nand Kishore Marwah v. Samundri Devi, 1987-4-S.C.C. 382 | Principle: rights of parties are to be determined by the position on the date of the suit; expiry of exemption period during pendency does not automatically affect rights where suit was instituted within the exemption period. | This Supreme Court decision was relied upon by counsel and the Division Bench in S.N. Kuba; this Court accepted its principle and applied it to allow the revision. |
| Om Prakash Gupta v. Dig Vijendrapal Gupta, A.I.R. 1982 S.C. 1230 = 1982-2-S.C.C. 61 | Held by a three-Judge Bench that if the Act is not applicable to a building (e.g., because of the age/standing requirement), a provision like S.39 (analogous to S.10 in effect) would not apply. | This larger-bench Supreme Court principle was relied on by the Court to conclude that where the Act was not applicable to the building at the relevant date, S.10 could not be made applicable to defeat executability. |
| Hajee Abdulla Sail v. Mohandas | Earlier decision cited among those holding non-executability under the Act. | Mentioned as one of several earlier authorities which the Court held could not prevail over later Supreme Court decisions. |
| Nanda Rao v. Lakshmanasami Mudaliar, 1969-1-M.L.J. 153 | Earlier decision cited in support of non-executability. | Listed among previous authorities that the Court considered not to be decisive in view of subsequent higher authority. |
| B.V. Patankar v. C.G. Sastry, A.I.R. 1961 S.C. 272 | Earlier Supreme Court authority cited in the discussion of precedent. | Referenced among older authorities; the Court observed that later decisions govern the present question. |
| Venkatraman Reddiar v. Abdul Ghani, 1980-2 M.L.J. 179 | Full Bench reference concerned a different question (usufructuary mortgagee/tenant status); contains an obiter remark that S.10 prohibits execution but does not prevent institution or decree. | The Court observed that the Full Bench decision dealt with a different question and that the obiter remark did not consider S.30; it therefore could not override later Supreme Court authority considered in this matter. |
Court's Reasoning and Analysis
The Court framed the sole question as whether the decree for ejectment was executable where the five-year exemption under S.30(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act had expired by the time the execution petition was presented.
The Court reviewed conflicting lines of authority. The District Munsif had relied on earlier decisions (including Tahali Vadivu Anandar, Chand Basha, Krishnasami v. Rasheeda and others) that favored non-executability under S.10. However, the revision petitioner relied on later authorities — notably the Division Bench decision in S.N. Kuba (which itself relied on the Supreme Court’s decision in Nand Kishore Marwah) and the three-Judge Bench decision in Om Prakash Gupta v. Dig Vijendrapal Gupta — to argue that rights must be determined by reference to the position on the date of the suit and that if the Act was not applicable to the building at that date S.10 could not be used to defeat execution.
The Court identified two principal grounds, drawn from higher authority, for allowing the revision:
- Applicability of the Act at the date of the suit: The Court relied on the reasoning in Om Prakash Gupta (three-Judge Bench) that if the Act itself is not applicable to a particular building (for example because statutory age/standing requirements are not met), then provisions such as S.39 (in the U.P. Act) or by analogy S.10 (in the Tamil Nadu Act) cannot be invoked to defeat rights. The Court quoted the larger Bench’s passage explaining that it would be absurd to apply a provision of an Act if the Act itself does not apply to the building.
- Rights determined by reference to the date of the suit: The Court accepted the principle in Nand Kishore Marwah (and the Division Bench in S.N. Kuba) that the rights of the parties are to be determined by reference to the rights available on the date of institution of the suit. Thus, if the suit was instituted while the building remained exempt (within the five-year period under S.30), the subsequent expiry of that exemption during pendency does not necessarily render the decree inexecutable, absent any change of statute or amendment that would alter rights.
Applying these principles to the facts as presented in the opinion (construction completed 1-4-1971; five-year exemption expired 31-3-1976; suit instituted 12-7-1974), the Court concluded that the rights of the parties must be determined by reference to the position on the date of the suit and that the Act, insofar as it would bar execution under S.10, could not be invoked to render the decree inexecutable in the circumstances before it. The Court also examined earlier decisions relied upon by the District Munsif and the respondent and found that in light of the subsequent Supreme Court and Division Bench authorities, those earlier decisions could not be relied upon to sustain the order below.
Holding and Implications
Revision allowed; the order of the District Munsif is set aside; E.A. No. 8 of 1984 filed by the respondent is dismissed; and the Court below is directed to proceed further with the execution petition and dispose of the same as expeditiously as possible.
Consequences and immediate effects:
- The execution application (E.A. No. 8 of 1984) that had been allowed by the District Munsif is dismissed by this Court, restoring the decreeholder’s ability to proceed with execution of the decree for possession.
- The District Court is directed to continue and conclude the execution proceedings without delay.
- The Court made no order as to costs.
Broader implications (as addressed in the opinion): The Court expressly held that, in the light of later Supreme Court decisions (including Om Prakash Gupta and Nand Kishore Marwah) and a Division Bench decision of the High Court (S.N. Kuba), earlier High Court authorities and other precedents which were relied upon to support non-executability cannot prevail. The opinion does not purport to lay down a novel precedent beyond applying these higher authorities to the facts of the case; rather it applies established Supreme Court and Division Bench principles to allow the revision and to permit execution to proceed.
End of summary.
1. This revision is directed against the order passed by' the District Munsif. Ootacamund, allowing the application E.A 8 of 1984, under S. 47, C.P.C
2. The facts which are necessary for the disposal of the revision can be briefly stated as follows;— The revision petitioner herein obtained a decree for recovery of the same (sic). The respondent herein, who is the defendant in the suit, filed the petition under S. 47 read with S. 151, C.P.C, contending that in the written statement filed by him in O.S 203 of 1974 he has specifically pleaded that he is entitled to the benefits of the Tamil Nadu Buildings (Lease and Rent Control) Act and that tne remedy of the revision petitioner herein is to proceed against him for eviction before the Rent Controller. The said plea was not accepted by the trial court as well as the District Court. However, in A.S 1153 of 1978, this court observed that the exe-cutability of the decree passed in the matter will have to be considered by the executing Court. It is stated that the construction of the building in question was completed by 1-4-1971 and the same was assessed to property tax with effect from the said date. The period of five years given in the Tamil Nadu Buildings (Lease and Rent Control) Act exempting from the operation of the provisions of the said Act so far as new buildings are concerned, expired with effect from 31-3-1976. Hence, from 1-4-1976, he has become the statutory tenant under the Tamil Nadu Buildings (Lease and Rent Control) Act and is entitled to jthe benefits of the said Act According to him therefore, the decree in O S. 203 of 11974, passed on 19-6-1976 is not executable by virtue of the provisions of S. 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act, and as such, he is not liable to be evicted and that he is entitled to continue in possession.
3. The said application was resisted by the revision petitioner herein and he inter alia contended that the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, as amended by Act 23 of 1973, are not applicable in executing the decree for possession dated 19-6-1976, which was confirmed by the District Court as well as the High Court. It is further stated that the building in question was exempted under S. 30(I) of the Act, and that the suit itself was filed on 12-7-1974, after the commencement of the amended Act and it ended in a valid decree. There was no change of law by way of further amendment of the Act. Though the decree was passed subsequent to the expiry of five years period, the same has not the effect of rendering the suit incompetent or nullifying the decree passed therein or adversely affecting its executability. Hence, there is no bar in executing the decree for recovery of possession. The right of the revision petitioner is a vested one and that there is no provision in the Madras Buildings (Lease and Rent Control) Act, to take away that right. The tenancy was terminated by a valid notice and the suit has been filed for recovery of possession. The revision petitioner was also awarded a decree for damages for use and occupation. The respondent did not have the status of tenant from 1-5-1974 and the suit was filed on 12-7-1974. Hence he prayed for dismissal of the application.
4. The District Munsif accepting the case of the respondent-tenant held that the revision petitioner herein, who is the dec ree holder, is not entitled to execute the decree in view of the specific provision contained in S. 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act and consequently allowed the application. Hence, the aggrieved decree holder, the revision petitioner herein, has preferred this revision.
5. The only question that arises for consideration in this revision is whether the plaintiff is entitled to execute the decree for ejectment, since the period of five years from the date of notification of the building expired by the time when the execution petition is filed.
6. The lower Court relied on the decisions of this Court reported in Tahali Vadivu Anandar v. Venugopala Chettiar 1960-1-M.LJ. 356 and Chand Basha v. Payrib 1978-1 M.L.J 46 and Krishnasami v. Rasheeda 93 L.W 378 = 1980-2-M.LJ. 463 held that the revision petitioner herein is not entitled to execute the decree and evict the respondent in view of the specific provisions contained in S. 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act. The lower Court did not follow the ruling rendered by a single Judge of this court reported in Arunachala v. Kesava Chettiar 96 L.W 277=1983-2-M.L.J 166 which is contrary to the above rulings. I had also an occasion to consider similar question in Akkanaicker v. Rajagopalammal and relied on the decision of the Supreme Court reported in Vineet Kumar v. Mangal Sain Wadhera and held, that the decree was not executable. Nainar Sundaram, J took the same view in the Madras Wines v. B. Abraham
7. The learned counsel for the revision petitioner drew my attention to the decision in S.N Kuba v. P.P.I Vaithianathan wherein a Division Bench of this Court held that the above decision rendered by us have been obviated by a later decision of the Supreme Court in Nand Kishore Marwah v. Samundri Devi 1987-4-S.C.C 382. In that case (Nand Kishore Devi v. Samundri Devi), a Bench of two Judges have taken the view that the decision of a Bench of three Judges in Om Prakash Gupta v. Dig Vijendrapal Gupta. A.I.R 1982 S.C 1230=1982-2-S.C.C 61.. It was held in the latter case, that the expiry of the period of exemption of ten years under the U.P Urban Buildings Regulation (Letting, Rent and Eviction) Act 1972, would not affect the rights of parties and the landlord was entitled to obtain a decree in the suit which could be executed. The view that rights of the parties will be determined on the basis of the rights available to them on the date of suit was accepted and reiterated. The above Division Bench of this Court S.N Kuba v. P.P I. Vaithianathan arose in a revision challenging the executability of a decree for possession passed against him on the basis of a compromise evidenced by a joint endorsement made by the parties on the plaint in the suit after the pronouncement of the Supreme Court on 16-4-1988 striking down S. 30(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, as violative of Art. 14 of the Copstitution of India. It was held in the above decision that the tenant is not entitled to the protection of the Act and the order of the executing Court directing delivery of possession cannot be said to be erroneous, and it was held that the executing Court is well within the jurisdiction in directing delivery of possession. In Nand Kishore Marwah v. Samundri Devi it was held—
“Within 10 years as provided for in S. 2(2) restriction on the institution of suit as provided for in S. 20(1) will not be applicable. Therefore, during the pendency of the litigation even if ten years expired the restriction under S. 20 will not be attracted as the suit had been instituted within ten years. It is well settled that the rights of the parties will be determined on the basis of the rights available to them on the date of the suit”
In this case, the decision reported in Vineet Kumar v. Mangal Sain Wadhera was dissented from. That was, a case which arose under U.P Urban Buildings (Regulation of Letting Rent arid Eviction) Act 1972. It is clear from the above decisions that the rights of parties will be determined on the basis of the rights available to them on the date of the filing of the suit and not on the date when the execution is made. The earliest decision reported in Om Prakash Gupta v. Dig Vijendrapal Gupta a case rendered by three Judges, wherein a similar view taken was relied on while dissenting the decision rendered in Vineet Kumar v. Mangal Sain Wadhera. It is only on the basis of these decisions, the learned counsel for the revision petitioner submitted that the order passed by the Court below is not sustainable, that it has to be set aside and that the executing Court should be directed to proceed with the execution.
8. I find much force in the contention of the learned counsel for the revision petitioner in two respects. It is clear from the decision of the larger Bench of the Supreme Court reported in Om Prakash Gupta v. Dig Vijendrapal Gupta referred to above, that when the Act itself is not applicable to a particular building, it cannot be said that S. 10 could be applicable. In the above quoted decision which is under the U.P Urban Building (Regulation of Letting Rent and Eviction) Act, 1972, it was held—
“In order to attract S. 39, the suit must be pending on the date of commencement of the Act, which is the 15th of July 1972; but the suit giving rise to the present appeal was filed on 23rd March 1974 long after the commencement of the Act. There is yet another reason why S. 39 will have no application to the present case. In view of sub-S.(2) of S. 2 of the Act, the Act is not applicable to a building which has not a standing of ten years, and if the Act itself was not applicable, it would be absurd to say that S. 39 thereof would be applicable”.
It is provided under S. 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act that nothing contained in this Act shall apply to any building for a period of five years from the date on which the construction is completed and notified to the local authority concerned. It cannot be said that S. 10 of the Act is applicable after the expiry of the period of five years contemplated therein. Similarly, it was held in the above decision, which is reiterated by the latest decision of the Supreme Court reported in Nand Kishore Marwah v. Samundri Devi and also of a Division Bench of this Court reported in S.N Kubav. P.P.I Vaithianathan that the rights of the parties will be determined on the basis of the rights available to them on the date of the suit and not at the time of execution unless there has been amendment to the Act or any change in the statute, it cannot be said thatthe decree is inexecutable. On both the grounds, the revision is to be allowed. In the face of the above decisions of the Supreme Court which have been followed by this Court, the earlier decision relied on by the learned counsel for the respondent and also by the lower Court reported in Vineet Kumar v. Mangal Sain Wadhera, Tahali Vadivu Anandar v. Venugopala Chettiar Krishnasami v. Rasheeda, Hajee Abdulla Sailv. Mohandas, Chand Basha v. Pyaribi 1978-1-M.L.J 46, Nanda Rao v. Lakshmanasami Mudaliar 1969-1-M.L.J 153 and B.V Patankab v. C.G Sastry A.I.R 1961 S.C 272 are of no avail and they cannot be relied on. It is also pointed out by the learned counsel for the petitioner that in the decision in V.enkataraman Reddiar v. Abdul Ghani 1980-2 M.L.J 179 the reference made to the Full Bench is only on tne question whether a tenant inducted into possession by an usufructuary mortgagee of non-agricultural property can claim the benefits of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, as against the mortgagor, after the redemption of the mortgage, and, this question is not the subject matter of the said decision of the Full Bench. However, by way of observation and obiter dictum at the end of the judgment, without reference to S. 30 of the Act, it is generally observed—
“It is by now well settled that there is nothing in S. 10 of the Act, prohibiting the institution of a suit for possession, or prohibiting a civil court, from passing a decree for possession. What is prohibited under the section is only the execution of a decree for ejectment passed by a civil Court.”
That is only in consonance with S. 10 of the Act. The question now arises for consideration in this revision is whether in respect of a building for a period of five years from the date on which the construction is made, the Act, is not applicable. That question was not at all considered in the said decision and no finding is rendered. Hence, the decisions relied on by the learned counsel for the respondent cannot prevail over the latest decisions of the Supreme Court and the Division Bench of this Court and that they are no longer good law (including decisions rendered by me in Akkanaicker v. Raja-gopala)11 and that of Nainar Sundaram, J. in the Madras Wines v. Abraham 1985 T.L.N.J 89=98 L.W 373 For all these reasons the revision is allowed. The order passed by the Court below is set aside and E.A No 8 of 1984 filed by the respondent is dismissed and the Court below is directed to proceed further with the execution petition and dispose of the same as expeditiously as possible. However, in the circumstances of the case, there will be no order as to costs.
VCS/KA.
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