V. Shanmugham And An... v. M/S Carona Sahu Co. ...

The short question that arises for consideration in this Civil Revision Petition is, whether the purchaser of a building pending disposal of the Revision Petition in this Court against an eviction order is entitled to execute the decree for eviction notwithstanding the fact that the purchaser has not been brought on record before the final disposal of the Revision Petition.

2. The petitioners herein have purchased the suit premises on 29.12.1984 under a registered sale deed from one Thajudeen. The original owner, namely, Thajudeen had filed R.C.O.P No. 90 of 1976, on the file of the Rent Controller (District Munsif), Salem, for eviction of the tenant (respondents herein) on the ground of wilful default in payment of rents and obtained an order of eviction. The appeal filed against the order of eviction was also dismissed. The tenant further preferred a Civil Revision Petition in this Court in C.R.P No. 2076 of 1983. When the C.R.P was pending, the petitioners herein purchased the suit premises. It is common ground that immediately after purchase, the tenant attorned the tenancy in favour of the petitioners herein and have been paying rents to the petitioners. However, the tenant did not take any steps to implead or to bring on record the purchasers as respondents in C.R.P No. 2076 of 1983. It is also common ground that the original owner, namely, Thajudeen did not appear and contest the Civil Revision Petition. Therefore, the C.R.P was heard on merits by hearing the learned counsel for the tenant and the same was ultimately dismissed confirming the order of eviction on 7.10.1988 Before the disposal of the C.R.P, the petitioners herein seem to have filed R.C.O.P No. 101 of 1987 on 24.7.1987 for eviction of the tenant under sections 10 (2), 10 (3) (a) (iii) and 14 (1) (b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as ‘the

Act’)That R.C.O.P was dismissed after the dismissal of the C.R.P 2076/83. Against the dismissal of the R.C.O.P No/101 of 1987, it is stated, an appeal is pending. While so, taking advantage of the dismissal of C.R.P No. 2076 of 1983, the petitioners filed E.P 3 of 1989 to execute the order of eviction passed in R.C.O.P No. 90 of 1976 confirmed in C.R.P No. 2076 of 1983. That execution petition was resisted inter alia contending that inasmuch as the petitioners herein (purchasers) having not taken steps to come on record in C.R.P No. 2076 of 1983 and prosecute the matter, cannot take advantage of the order in C.R.P and seek execution of the same. In support of that, they placed reliance on a decision in Syed Shafee & another v. S. Agmath Basha & another 1988-2 L.W 261 The executing court, accepting the objection taken by the tenant, dismissed the E.P as not maintainable. Hence the present Civil Revision Petition.

3. Mr. S. Jagadeesan, learned counsel appearing for the petitioners, submitted that the executing court went wrong in applying the ratio in 1988-2 Law Weekly 261 (supra) as the facts are entirely different. According to Mr. S. Jagadeesan, the tenant, notwithstanding the non-appearance of the original owner in the C.R.P, took a chance by arguing the C.R.P on merits and having got a decision adverse against him, cannot now be heard to say that the order in the C.R.P is not executable by the petitioners who are purchasers of the suit premises. He also submitted that the purchasers of the subject-matter of the suit property can apply for execution of the decree without a separate assignment of the decree. In support of that, he placed reliance on a decision of this Court in Gnanasundaram and another v. Murugesa Naicker A.I.R 1989 Madras 343. Again, placing reliance on a judgment in M.A Abdul Rahiman, Abdul Rahim and 2 others v. A.P Abdulla 80 L.W 54 Short Notes, the learned counsel submitted that the execution petition filed by the purchaser is maintainable. Again, he relied on another judgment in Maneuver Biota and another v. Narayanan and another A.I.R 1961 Madras 200 and contended that the fact that the petitioners filed R.C.O.P 101 of 1987 will not in any way deprive the petitioners from executing the eviction order in R.C.O.P No. 90 of 1976 as confirmed in C.R.P No. 2076 of 1983. For the same contention, he cited another judgment in Subbanna v. Seshagiri Rao 1979 I.M.L.J 385.

4. Mr. T.R Rajagopalan, learned counsel appearing for the tenant, contending contra, submitted that the ratio laid down in 1988-2 L.W 261 (supra) squarely applies to the facts of this case and, therefore, the executing Court was right in dismissing the execution petition as not maintainable. He submitted that the decision in A.I.R 1961 Madras 200 = 1961 (2) M.L.J Page 176 (supra) is distinguishable on facts. According to him, in the judgment reported in 1961 (2) M.L.J Page 176 (supra), the purchaser got himself impleaded soon after the purchase and continued the proceedings and, therefore, the principle laid down thereincannot be applied to the facts of this case wherein the purchaser failed to come on record and continue the proceedings.

5. I have considered the rival submissions. In 1988 (2) L.W page 261 (supra), the tenant who was the Revision Petitioner, at the time of final hearing of the Civil Revision Petition, advanced an argument stating that the landlords having parted with theproperty, and the purchaser having not been brought on record, the proceedings cannot be continued by the quondam owners and the quondam owners also will have no locus standi to continue the proceedings. Accepting that argument, this Court (Sivasubramaniam, J.) terminated the eviction proceedings. But in the case on hand, as noticed earlier, though the quondam owner was not interested in prosecuting the matter by not contesting the case, it is the tenant who argued the matter on merits and got an order adverse against him. The tenant could have taken a stand as the one advanced by the tenant in the case reported in 1988-2 L.W 261 (supra). Instead, the tenant in the case on hand took a chance, and pot a decision adverse against him. Therefore, I am of the view that the tenant cannot press into service the ratio laid down in 1988-2 L.W 261 (supra).

6. In A.I.R 1961 Madras 200 (supra), Jagadisan, J., while considering the right of purchaser of a building, has held as follows:—

It is clear, therefore, that none of the circumstances relied upon by the tenant, namely, the attornment, the application for eviction filed by the purchasers, and the institution of the suit for recovery of arrears of rent, can individually or collectively constitute fresh tenancy agreement between the purchasers and the tenant after the purchase. The tenant is a statutory tenant who is in any event bound to pay the rent due to the premises.

Even if the tenant had paid the rent to the purchasers and the rent had been accepted by them, it will not be possible to infer from such payment and acceptance a new contract of tenancy Between the purchasers and the tenant. The mere institution of a suit for recovery of arrears of rent cannot be a strong circumstance in favour of the tenant than payment of rent by him to the purchaser.

Further on the facts of the instant case the averments in paragraph 6 of the plaint in O.S No. 815 of 1959, City Civil Court, Madras, unmistakably show that the purchasers were instituting the suit without prejudice to their rights to enforce the order of eviction already obtained before the House Rent Controller. The question is one of animus and the real intention of the parties. Can it be said that the purchasers abandoned and waived their rights to enforce the eviction order by entering into a new contract, express or implied? There cannot be a valid contract without consensus ad idem of the terms of the contract between the parties.

The purchasers were very clear in their minds that they should get possession from the tenant. They took every step only to achieve that purpose. The circumstances in the case militate against there being a fresh contract of lease between the parties superseding the rights and obligations stemming out of the eviction order. I am unable to hold that on the materials placed before me there was a fresh contract of lease or tenancy between the purchasers and the tenant. (para 26)

Mr. T.R Rajagopalan, learned counsel appearing for the tenant wanted to distinguish this case on the ground that on* facts in that case the purchaser got himself impleaded and continued the proceedings and, therefore, the principle laid down in that case will not apply to the facts of this case. I do not think that contention can be accepted as the principle laid down by the learned Judge was in general. Further, in 80 Law Weekly 54 (Short Notes) (supra), Alagiriswami, J., as he then was, has taken the view that the order of eviction which has become final can be put into execution, by the purchaser from the landlord. The decision in 1979 (1) M.L.J 385 (supra) is not quite relevant to the facts of the present case except to the extent that the learned Judge (Ramaprasad Rao, C.J) has applied the ratio in A.I.R 1961 Madras 200 (supra) in that case.

7. In A.I.R 1986 Madras 343 (supra), K.M Natarajan, J., after referring to several judgments of this Court and of the Supreme Court, has held as follows:—

As rightly observed by the Courts below by virtue of the Explanation to R. 16 of O. 21, C.P.C read with S. 146, C.P.C the respondent who got transfer of the subject matter of the suit by virtue of the sale in his favour can apply for execution of the decree without a separate assignment of the decree as required by R. 16. Learned counsel for the appellants merely submitted that the Explanation to R. 16 or O. 21, C.P.C was added by Amendment Act 104 of 1976 and it was repealed and that the Explanation cannot be taken to undermine the meaning of the main section. I do not find any merit in the said contention. There is absolutely nothing to show that the Amendment Act 104 of 1976 was repealed. Since the amendment was carried out in the main Act, the separate Act was considered to be repealed as superfluous. In the circumstances, it cannot be said that the Explanation has no weight, it cannot also be said that the Explanation takes away the effect and purport of the main rule. It is only an explanatory note to R. 16. In view of the main provision in R. 16, it is provided that a transferee of rights in the property, which is the subject matter of the suit, may apply for execution of the decree without a separate assignment of the decree, on the ground that the said document is unnecessary in view of the conveyance deed already obtained by him. There is absolutely nothing to show that the Explanation runs counter to the main rule and as such it has no effect.

It is not in dispute that the Code of Civil Procedure applies to execution proceedings in Rent Control matters. Further, the petitioners have come on record in the execution proceedings in the place of the place of the quondam owner.

8. For all these reasons. I hold that the court below is not right in holding that the execution petition is not maintainable. Accordingly, I set aside the order of the Court below and direct the Court below to consider the execution petition and dispose of the same on merits expeditiously. The Civil Revision Petition is allowed. However, there will be no order as to costs.

RR/VCS