1. This revision is directed against an order passed by an Executing Court refusing the prayer of the surviving judgment-debtor to drop the Execution Case as not maintainable. The facts in brief leading to the aforesaid order may be stated as follows:
The present opp. party (Jadunath Mohapatra) filed a proceeding under the Orissa House Rent Control Act against the present petitioner and his father Mohanlal Modi alleging that the said Mohanlal was a tenant in respect of a shop room and that he is liable to be evicted on the ground of wilful default and also for the reason that the landlord required the house bond fide for his own purpose. It has been stated that there was no allegation in the said proceeding that the present petitioner was a tenant under the present opp. party, though he was included as one of the opp. parties in the said proceeding. The petitioner alleges that he is one of the 5 sons of Mohanlal. The petitioner and his father (since dead) denied the relationship of landlord and tenant and set up a case that Mohanlal was a tenant under one Sitanath, a co-sharer of Jadunath. It was alleged that Sitanath having died some time prior to the initiation of the House Rent Control Proceeding: Mohanlal became the tenant under his son Prasanna Mohapatra, to whom he was paying rent. The House Rent Controller on consideration of the evidence on record dismissed the application for eviction. The landlord carried up the matter to the appellate Court which reversed the decision of the House Rent Controller and allowed the prayer for eviction. The aforesaid order of eviction is under execution in the Court of Munsif, Balasore. Mohanlal dies on 24-5-1985 at Balasore of which intimation was given to the Executing Court. He has left behind his 5 sons and two daughters of whom the petitioner alone was a party in the House Rent Control Proceeding as well as in the Execution Case. Despite the intimation of death no steps for substitution were taken by the landlord-decree-holder to bring the other legal representatives on record. The present petitioner filed an application objecting to the executability of the order of eviction on the ground that the proceeding has abated for non-substitution of the other legal representatives of the deceased Mohanlal, who were in possession of the shop room in question and were running business in medicine therein. By the impugned order the Executing Court dismissed the said application holding that the Execution Case is maintainable in the absence of other legal representatives. Hence this revision.
2. Mr. Kar, learned Counsel for the petitioner at the first instance, urged that the executing proceeding arising out of an order of House Rent Controller, is a civil proceeding, which would abate for non-substitution of the legal representatives. But the said argument was not pursued in view of the provisions contained in O. 22, R. 12 of the Code of Civil Procedure, which provides that nothing in Rules 3, 4 and 8 shall apply to proceeding in execution of a decree or order. The Rr. 3 and 4 of the said Order prescribe procedures for substitution in case of death of a plaintiff or a defendant respectively and the consequence of non-substitution of their legal representatives. The scope of R. 8 with which we are not concerned, is however, different. There would be no question of abatement of the execution proceeding for non-substitution of the legal representatives of deceased judgment-debtor, if the relevant rules of O. 22 would not apply. In the event of death of a judgment-debtor during the pendency of an execution case, whether it is necessary to bring the legal representatives to record for the purpose of successful execution of the decree and whether the execution proceeding would be maintainable in the absence of the proper parties, are however, different matters, which I deal with later on.
3. The main argument of Mr. Kar in this case has been that the petitioner's father, by virtue of the provisions of the Orissa House Rent Control Act was a statutory tenant and after his death the petitioner has inherited the tenancy as it is a heritable right. He has relied upon a decision of the Supreme Court reported in AIR 1985 SC 796 (Smt. Gian Devi Anand v. Jeevan Kumar), in support of the proposition that the right of a statutory tenants is heritable. In order to appreciate the aforesaid contention it is necessary to analyse the conception of ‘statutory tenancy’ which expression in the language of the Supreme Court in the aforesaid decision is coined by the Judges in England and has been imported into the jurisprudence of this country and has become an expression of common use to denote a tenant whose contractual tenancy has been determined, but who is continuing in possession of the premises by virtue of the protection against eviction afforded to him by the rent control legislation. The definition of “tenant” as given in the Orissa House Rent Control Act means a person by whom or on whose behalf the rent is payable for any house and includes every person who from time to time derives title under a tenant, or a person continuing in possession after the termination of his tenancy otherwise than under the provisions of this Act and shall include any person against whom a suit for ejectment is pending in a Court of competent jurisdiction, but not a person against whom a decree or order for eviction has been made by such a Court. Generally speaking tenancy is a matter of contract and the relationship of landlord and tenant is governed by the provisions of the Transfer of Property Act. The Transfer of Property Act makes provision for termination of tenancy under various circumstances, such as (i) by efflux of time; (ii) by happening of some event where such is the condition of tenancy; (iii) by merger of interest of the lessee and the lessor in one person; (iv) by express surrender; (v) by forfeiture; and (vi) by notice to quit. Thus when a contractual tenancy is determined by any of the aforesaid processes and the tenant whose tenancy has come to an end thereby still remains in possession of the property by virtue of the provisions of a statute like the Rent Control Act his right to continue under the provisions of the said Statute is often termed as a statutory tenancy. In such cases the relationship being a creature of a particular statute, the right to continue in possession is solely referable to the said statute. It may be further noted that sub-section (5) of S. 7 of the House Rent Control Act expressly provides that notwithstanding anything contained in S. 106 of the Transfer of Property Act, it shall not be necessary for the landlord to serve a notice for termination of the tenancy of the tenant for the purposes of proceedings under this section. This is so provided because in spite of a notice for termination of tenancy duly served on the tenant, he shall still continue to be a tenant as per the definition of the expression “tenant” given in the Orissa House Rent Control Act. The only way of termination of the tenancy to which provisions of the House Rent Control Act applies would be by taking recourse to S. 7 of the Act. It is, therefore clear that a tenant against whom the House Rent Controller has passed an order of eviction, no more continues to be a tenant and the tenancy stands terminated.
4-5. The House Rent Controller by his final order passed on 30-5-1979 dismissed the landlord's application for eviction under S. 7 of the Orissa House Rent Control Act. The appellate authority, namely, the Chief Judicial Magistrate before whom the landlord went up in H.R.C Appeal No. 5/79 reversed the decision of the House Rent Controller by allowing the application under S. 7 of the Act and directing eviction of the tenant by his judgment dated 15-4-80. Thus the relationship of landlord and tenant came to an end by virtue of the judgment of the appellate authority. Learned Counsel for the petitioner pointed out that against the judgment of the appellate authority under the House Rent Control Act, O.J.C No. 1006/80 was filed by the petitioner and his father Mohanlal and, therefore, the judgment of the Chief Judicial Magistrate in appeal cannot be taken to be a final determination of the proceeding under S. 7 of the Act. I do not intend to decide the question as to whether the writ application would be taken to be a continuation of the proceeding u/s. 7 of the Act as it is not necessary in the facts of this case. The writ application was dismissed by this Court on 4-7-1984 and; therefore, assuming the same to be a continuation of the proceeding u/s. 7 of the Act, it was finally terminated on the aforesaid date. Thus assuming the aforesaid argument of the learned Counsel for the petitioner to be correct, the tenancy stood terminated finally by the dismissal of the writ application with which the judgment of the appellate authority merged.
6. Mohanlal died on 24-5-1985 after the termination of the tenancy in the proceeding under S. 7 of the Act. Thus on the date of his death, he was not a statutory tenant. The question of heritability of the right of a statutory tenant does not arise in the facts of this case. The entire argument of the learned Counsel for the petitioner on the basis that the legal representatives of Mohanlal inherited the statutory tenancy of Mohanlal is thoroughly misconceived.
7. If the legal representatives of deceased Mohanlal did continue in possession of the lease-hold premises after the legal termination of the tenancy, they can at best be described as tenants at sufferance which expression is merely a fiction to distinguish their unlawful possession from that of a trespasser. The possession of a trespasser is wrongful both in its inception and in its continuance, whereas the possession of a tenant at sufferance was rightful in its inception, but wrongful in its continuance.
8. At the time when Mohanlal died, the execution case, to obtain possession by virtue of the final order passed in the proceeding under S. 7 of the Act, was pending. The legal representatives of Mohanlal would be bound by the decree passed against Mohanlal and they have no status of their own to resist the execution case.
9. I have already held that the provisions of O. 22, Rr. 3 and 4 of the Code have no application whatsoever to execution cases. I have also held that Mohanlal having died after the termination of tenancy under the provisions of the House Rent Control Act, he could not be a statutory tenant and thus there was no legal right available to be inherited by his legal representatives. Mohanlal was at best a tenant at sufferance against whom an execution case was pending on the date of his death. One of his sons, namely, the petitioner has been on record right from the inception of the proceeding u/s. 7 of the Act. He is a co-judgment-debtor along with Mohanlal. Therefore, the question of bringing the other legal representatives of deceased Mohanlal on record does not at all arise in the facts of this case.
10. In this connection a decision of the Supreme Court reported in AIR 1989 SC 1470 : (1989 All LJ 692) (H.C Pandey v. G.C Paul), is elucidative. It has been held therein that upon death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. It is a single tenancy which devolves on the heirs, and there is no division of the premises or of the rent payable therefor. In such circumstances, their Lordships held that notice terminating tenancy under S. 106 of the Transfer of Property Act addressed to and served upon one of the sons of the original tenant, who paid rent on behalf of all and acted on behalf of all the heirs of the original tenant could not be said to be insufficient. It means that even when the right of tenancy before its termination has been inherited by the legal heirs of the tenant they are joint tenants of a single tenancy and one of them can represent the entire estate for which reason notice of termination of the tenancy under S. 106 of the Transfer of Property Act served on one is capable of termminating the tenancy inherited by the joint tenants as legal heirs of the original tenant. In the same analysis the petitioner, who was a party to the proceeding under the House Rent Control Act along with his father represents all such persons, who by virtue of the death of the original tenant, are similarly situated like the present petitioner.
11. In the event of the death of a judgment-debtor, the question that may arise for consideration as to against whom the execution proceeding shall be continued if the provisions of O. 22 of the Code are not applicable to an execution proceeding. The provision contained in S. 146 of the Code is a complete answer to the aforesaid question. It provides that where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him. In a case where the sole judgment-debtor dies, the proceeding may be continued against such person who claims under the deceased judgment-debtor. Depending on the facts of each case, necessity for bringing the legal representatives of a deceased judgment-debtor to record under the aforesaid provision of the Code shall have to be considered.
12. The claim of the present petitioner that he does not represent the entire estate after the death of his father, and therefore, other legal representatives of deceased Mohanlal are required to be impleaded in the execution proceeding does not merit any consideration in the facts of this case. Mohanlal when alive challenged the maintainability of the execution proceeding on the ground that the House Rent Control Act had expired by 3-5-1981 and hence there being no. Act in force the execution proceeding is liable to be dropped. The executing Court did not accept the aforesaid, contention against which deceased Mohanlal and the present petitioner filed Civil Revision No. 649/84 in this Court. During the pendency of the said revision petition, Mohanlal died. The present petitioner who was also a co-petitioner in the said revision filed a memo through his Advocate praying for being allowed to continue the revision alone being the son and heir of deceased Mohanlal. In other words, he did not pray for substitution of the legal representatives of Mohanlal nor any of the other legal representatives of Mohanlal suo motu came forward to be impleaded as parties in the said civil revision. The present petitioner thus represented the entire estate of deceased Mohanlal in the said civil revision. He, therefore, cannot be allowed to turn back and contend in the same execution proceeding that in the absence of other legal representatives of deceased Mohanlal, the execution proceeding is liable to be dismissed.
13. This revision is devoid of any merit and, is therefore, dismissed. There would be, however, no order as to costs.
Petition dismissed.