1. This civil revision petition arises out of the dismissal of the rent control E.A 45 of 1981 (in E.P 25 of 1981) for removal of the obstruction. The main execution petition is for execution of the eviction order obtained in the rent control proceeding against two tenants, after the said eviction order has been confirmed by the superior court. Since there was obstruction by the respondent to the delivery warrant ordered by the execution court, the landlord-petitioner filed the above said E.A for removal of obstruction. But the said E.A was dismissed and the subsequent appeal R.C A. 56 of 1982 on the file of the Sub-Court, Cuddalore, was also dismissed and hence he has filed this civil revision petition.
2. The ground, on which both the courts below dismissed the execution application was that the respondent herein is independently in possession of the building in question for a long time even before the petitioner filed R.C.O.P 29 of 1977 and he is not claiming title to the property on behalf of the judgment debtors. So holding, the lower appellate court held that the remedy for the petitioner is only to sue for possession against the respondent.
3. It is clear that the courts below in deciding this execution application, have not taken note of the amendments in the Civil Procedure Code, made in this regard in the year 1976. Prior to the amendment the position was as follows:— Under Order 21, Rule 97, the enquiry by the executing Court in an execution application for removal of obstruction was a summary one, concerned only with the question of present possession on the obstruction and under Rule 98 thereof if the resistance was by the judgment debtor or some other person at his instigation, the court had to direct that the applicant be put in possession. But under Rule 99 thereof, if the resistance was occasioned by a person other than the judgment debtor, claiming in good faith to be in possession of the suit property on his own account or on account of a person other than the judgment debtor the Court would have to dismiss the application. Rule 100 thereof enabled a person, other than the judgment debtor, if dispossessed either by a decree holder or by a purchaser at a court auction sale, to apply to Court complaining of the said dispossession and under R. 101 if the court found that such applicant was in possession on his own account or on account of some person other than the judgment debtor, it could direct that the applicant be put in possession. Such an order was conclusive as between the parties, except when a party, other than the judgment debtor against whom the order was passed, under Rule 103, institutes a suit to establish his right to the possession claimed by him. Subject to the result of such a suit, the order was conclusive.
4. But, the amendment Act of 1976, though retained sub Rule (1) of Rule 97, substituted a new sub-Rule (2) in the place of earlier sub Rule (2) and introduced new Rr. 98 to 106. These amendments are in conformity with the legislative policy of entrusting the determination of all questions including questions as to the title of the concerned party by the executing court. The main feature of the amendments made by 1976 Act is that all questions including the question as to the right, title or interest in the property arising between the parties to the proceeding under Rule 97 or Rule 99 must be determined by the executing court and not left to be decided by way oi separate suit. To ensure this, the earlier Rule 103 has been omitted and a new Rule 103 has been enacted providing that the order passed under these Rules shall have the same force and shall be subject to the same conditions as to an appeal as if it were a decree. Consistent with these changes in the nature of the enquiry and the order passed therein, sub-Rule (2) of Rule 97 has been amended by substituting the words ‘to adjudicate’ for the words ‘for investigating’. Order 21, Rule 101, C.P.C after the said 1976 amendment runs as follows—
“All questions (including question relating to right, title or interest in the property) arising between the parties to a proceeding on an application under R. 98 or R. 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.”
Therefore, the scope of the proceedings has been now widened so as to include all questions arising between the parties and relevant to the adjudication of the application, including questions as to the title of such parties in the property. These questions would include all those questions, which could have properly been raised in suits under the earlier Rule 103. To avoid delay, a deeming provision as to jurisdiction is also made, as stated above, in Order 21, Rule 101, C.P.C
5. To this effect, this court also obser ved in M. Chockalingam v. Veerabadra Chettiar . 96 L.W 668. as follows—
“…the Courts below have failed to exercise the jurisdiction vested in it in understanding the full import of O. 21, R. 98 to 103 C.P.C in not trying the whole matter as a suit. The orders of the executing Court as also that of the appellate Court are set aside and the matter is remanded to the executing court for disposal…”
Therefore, the courts below in the present case are wrong in dealing with only possessory interest of the obstructor-respondent as it was done earlier prior to 1976 amendment. Therefore, a correct legal approach has not been made by the courts below.
6. The learned counsel for the respondent no doubt made an attempt to distinguish this case under the Rent Control Act from other cases. But, I do not think any such distinction could be made. In fact S. 18 of the Tamil Nadu Buildings (Lease and Rent Control) Act provides that every eviction order made under the relevant sections shall be executed by the Rent Controller as if such an order was passed by a civil Court and for this purpose, the Rent Controller shall have all the powers of a civil court.
7. I, therefore, set aside the orders of both the Courts below and remand the matter back to the trial court for a proper disposa 1 in the light of the above said amended provisions of Civil Procedure Code. Hence this civil revision petition is allowed. No costs.
RR/VCS