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K.P.S. Thangaswamy Chettiyar Vs. A. Bapoo Sahib - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Reported in(1949)2MLJ699
AppellantK.P.S. Thangaswamy Chettiyar
RespondentA. Bapoo Sahib
Cases Referred and Jai Berhma v. Kedarnath Marwari
Excerpt:
.....in appeal, that the court set up for that purpose in the mofussil is the court of the subordinate judge or district judge where, there is no sub-judge and. narayana aiyar founded his reply is well-established in this province. the suggestion that the tenant should have gone to the rent controller and obtained a specific order from him is not as simple as it looks because if the tenant had made such an application he might well have been met with the plea that the rent controller had no jurisdiction at all. vaidhyanatha aiyar are sound we must be prepared to assume that the legislature deliberately conferred a right of appeal and simultaneously nullified its intentions by depriving the successful party of any means of realising the benefit of his success. vaidhyanatha aiyar next..........grounds that he required the shop for ' his own use, and that the tenant was in arrears with his rent. the rent controller recorded no finding on the question whether the landlord required the shop for his own use; but he found that the respondent was in arrear of rent for june 1947 and therefore passed an order evicting him from the premises. the appellant put the order in execution as soon as he could and actually took possession of the property on 22nd june, 1948. the tenant appealed to the sub-judge who reversed the order of the rent controller and dismissed the petition for eviction. that order was pronounced on the 25th of august, 1948. mr. vaidyanatha aiyar for the appellant complained that the order made in the appeal was inequitable; but into that matter we cannot go for the.....
Judgment:

Balakrishna Ayyar, J.

1. The property which forms the subject-matter of these proceedings is a shop in Big Bazaar Street, Tiruchirapalli town. The appellant who is the owner of the property applied to the Rent Controller for eviction of the respondent who was his tenant on the grounds that he required the shop for ' his own use, and that the tenant was in arrears with his rent. The Rent Controller recorded no finding on the question whether the landlord required the shop for his own use; but he found that the respondent was in arrear of rent for June 1947 and therefore passed an order evicting him from the premises. The appellant put the order in execution as soon as he could and actually took possession of the property on 22nd June, 1948. The tenant appealed to the Sub-Judge who reversed the order of the Rent Controller and dismissed the petition for eviction. That order was pronounced on the 25th of August, 1948. Mr. Vaidyanatha Aiyar for the appellant complained that the order made in the appeal was inequitable; but into that matter we cannot go for the reason that under Section 12(4) of Madras Act XV of 1946 the decision of the appellate authority is final. On 30th August, 1945, i.e., five days after the Sub-Judge had pronounced the order in the appeal the tenant applied for restitution, and without notice to the appellant the learned Subordinate Judge ordered re-delivery of the property by 30th September, 1948 and re-delivery was actually effected. It is against this order that the present appeal has been filed.

2. Before examining the contentions of Mr. Vaidyanatha Aiyar for the appellant it may be stated that so far as execution is concerned, the scheme of Madras Act XV of 1946 is that in the mofussil all orders passed under Section 7,8 or 12 of the Act, i.e., the orders of the Rent Controller and the Appellate Authority--are executable in the Court of the appropriate Subordinate Judge or where there is no Subordinate Judge, in the Court of the District Judge.

3. For the appellant, Mr. Vaidyanatha Aiyar contended that the lower court had no jurisdiction to order restitution. His reasoning was that it could derive the necessary power only from Section 144, Civil Procedure Code but that section has not yet been made applicable to proceedings under Madras Act XV of 1946. Besides, even assuming that Section 144 does apply to a matter of this kind the procedure laid down by the decisions in respect of Section 144 has not been followed. Before restitution can be made, there must be a separate and specific order directing restitution and particularising the nature and extent of the restitution that should be made. There must be an order, said Mr. Vaidyanatha Aiyar, ' crystallising ' and formulating the rights of the party seeking restitution. Such an order can be made only, by the court of first instance, i.e., in the present case, the Rent Controller. The Rent Controller has made no such order, and therefore there was no order on the basis of which any restitution could be made. Further the order which the Rent Controller passed in the first instance was sent to the Sub-Court for execution, and the moment the Sub-Court executed that order, it became functus qfficio.

4. In his attempt to develop this line of reasoning, Mr. Vaidyanatha Aiyar cited a number of decisions. The first of these is Banmul Soanmul v. Harakchand Roopchand : (1948)1MLJ256 . We do not think that that decision has really any application to the facts of the present case. In that case what happened was this : The Provincial Government passed an order under the Madras House Rent Control Order- this is different from the Act--in favour of a certain party. An attempt was made to execute that order through the machinery set up by Madras Act XV of 1946. It was held that the order was not one which could be or was made pursuant to any provisions of the Act. Since Section 9 enables execution to issue only in respect of orders made under the specified sections of the Act, the order which had been obtained from the Government was not one which could be executed under that Act. In the present case the order of the Sub-Judge was not made under the House Rent Control Order but in virtue of the powers conferred by the Act itself. Section 9 of the Act specifically provides that:

every order passed on appeal under Section 12 shall be executed...by the Principal,. Subordinate Judge having original jurisdiction over the area in which the building is situated.

This decision is not an authority for the proposition that no restitution can be ordered under the Act. In Rohani Ramandhwqj Prasad Singh v. Har Prasad Singh (1943) 2M.L.J. 460 ., which is the second case cited by Mr. Vaidhyanatha Aiyar the Privy Council decided:

When a decree is varied or reversed in circumstances giving rise to a right by way of restitution the right arises automatically and is claimable under Section 144, Civil Procedure Code, before the trial Court.

Mr. Vaidhyanatha Aiyar next referred to Palaniyandi Pillai v. Rasappa Pillai : AIR1937Mad173 where this passage occurs:

It will be seen that under Section 144 before an order for restitution can be made the form and the manner of restitution and the relief which the Court would grant for giving the benefit of the decree to the person who seeks the restitution of the property which he has been deprived of, have to be determined by the Court...After determination as aforesaid it will be then open to the Court to give the appropriate relief which the nature of the case may require and which may accord with such determination.

He also cited Birendranath Basu Thakur v. Surendrakumar Basu Thakur (1940) 1 486 where the learned Judges say:

The final judgment or decree furnishes only the foundation to a claim for restitution,--gives authority for the view that restitution is necessary. An application for restitution is not one for enforcement of that judgment or decree, but in the words of Rankin, C.J., it is an application for relief which is consequential upon the appellate Court's decree of reversal....The order for restitution is in effect a new decree, which has to be enforced by another execution.

5. Finally he referred in this connection to Kishori Mohan v. Brahma Niranjan : AIR1938Cal554 , in which it was decided that a Court to which a decree is transmitted for execution becomes functus qfficio the moment it has executed the decree. He also referred to a passage at page 556 which runs thus:

Therefore the judgment-debtors had the right to go to the Court of first instance for such restitution as was just and proper....

In view of these decisions he repeated that the tenant should in the first instance have gone to the Rent Controller and obtained an order from him, ' crystallising and formulating ' his rights in regard to restitution and thereafter put that order in execution. He also suggested that if it was necessary a separate suit for the purpose should or could be filed.

6. To this Mr. Narayanaswami Aiyar replied (i) that in this Province at least it is well established that restitution proceedings are in the nature of execution proceedings, (ii) that Section 8 of Madras Act XV of 1946 provides a machinery for executing orders passed in appeal, that the Court set up for that purpose in the mofussil is the Court of the Subordinate Judge or District Judge where, there is no Sub-Judge and. (iii) that the general rule is that once the ordinary tribunals are seized of a matter, the forms, procedure and reliefs usually observed by and obtainable in such Courts become applicable and available in respect of that matter. In Somasundaram v. Chokkalingam I.L.R. (1916) Mad. 780, it was decided,

An application for restitution is an application in execution under the new Code of Civil Procedure.

The same view appears in Unnamalai Ammal v. Mathan : (1917)33MLJ413 . The decision there was that.

An application for restitution is an application for execution of a decree and is governed Article 182 and not by Article 181, Limitation Act.

In one of the cases cited by Mr. Vaidhyanatha Aiyar and already referred to-namely, Palaniyandi Pillai v. Rasappa Pillai : AIR1937Mad173 .

It is no doubt true that our High Court has taken the view that an application for restitution is an application for execution of the decree whatever may be the view of the other High Courts.

There are several other decisions of this Court to the same effect and it is clear that the first of the three propositions on which Mr. Narayana Aiyar founded his reply is well-established in this Province.

7. In Maruthamuthu v. H. R. E. Board, Madras : AIR1937Mad653 . Varadachariar, J., as he then was, took it as a proposition which required no authority, namely, that

once a matter comes before a regular Civil Court its further course will be governed by the provisions of the Code.

The same view is expressed in Kandaswami v. Neelamegam Pillai : AIR1947Mad112 , where Chandra-sekhra Aiyar, J., refers to a number of decisions which have laid down that rule. It is sufficient to refer to one of the decisions he cited, viz., the case of National 'Telephone Co., Ltd. v. Postmaster General (1913) A.C. 546., where Viscount Haldane, L.C. says at page 552:

When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the Procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches.

On the basis of this rule it must be held that once execution proceedings under this Act are placed in the hands of the ordinary Courts, the provisions of the Civil Procedure Code relating to that subject would apply mutatis mutandis and so far as the nature of the machinary set up by Madras Act XV of 1946 and the provisions thereof permit.

8. There is another aspect of the matter. The contention for the appellant ignores the true nature of restitution proceedings. It is a basic rule that the Courts will not permit a suitor to suffer by reason of a wrong order it has made, and that when once the error is discovered it will so far as possible put him in the position which he would have occupied if the wrong order had not been made. The right to restitution is not derived from Section 144, Civil Procedure Code. That section only prescribes a method by which that right can be enforced. In Birendranath Basu Thakur v. Surendrakumar Basu Thakur I.L.R. (1940) 1 Cal. 486, which Mr. Vaidhyanatha Aiyar himself cited, the following passage occurs at page 493:

The power a Court to direct restitution is inherent in the Court itself. It rests on the principle (hat a Court of Justice is under a duty to repair the injury done to a party by its act : Rodger v. 77k Comptoir D'Escompte de Paris (1871) L.R. 3 P.C. 465, and Jai Berhma v. Kedarnath Marwari (1932) 44 M.LJ. 735 : L.R. 49 IndAp 351 I.L.R. 2 Pat. 10 The right of a party to have restitution and the duty of the Court to give him restitution do not rest on the provisions of Section 144 of the Civil Procedure Code, which defines the procedure only in one class of cases requiring restitution by enacting that the application for restitution is to be made in the Court of first instance.

The portion underlined implies that Section 144 is not exhaustive of the forms of procedure.

9. If as we think we have regard to the substance of the matter and not merely to its technical forms it must be clear that the order passed by the learned Subordinate Judge is the only one which could have been made in the circumstances of the case. Except by ordering that the tenant be put back into possession of the property the appellate authority could not have given effect to its order at all.

10. It has been already mentioned that the contention of Mr. Vaidhyanatha Aiyar was that after he had succeeded in the appeal the tenant should have gone back to the Rent Controller and obtained a separate order from him granting him restitution and thereafter put this order in execution in the Sub-Court or if necessary filed a separate suit. It is difficult to see how in view of the provisions of Section 144(2), Civil Procedure Code, any suit would lie. The suggestion that the tenant should have gone to the Rent Controller and obtained a specific order from him is not as simple as it looks because if the tenant had made such an application he might well have been met with the plea that the Rent Controller had no jurisdiction at all.

11. A decisive objection to the argument of Mr. Vaidhyanatha Aiyar is that if his contentions were to prevail there would be really no effective means of putting in execution a large category of orders that may be passed in appeal. The clear purpose of Madras Act XV of 1946 was to simplify proceedings and to set up a machinery for the speedier disposal of certain matters; but if the contentions of Mr. Vaidhyanatha Aiyar are sound we must be prepared to assume that the legislature deliberately conferred a right of appeal and simultaneously nullified its intentions by depriving the successful party of any means of realising the benefit of his success. It is not to be supposed that the Legislature would have stultified itself in this manner,

12. Mr. Vaidhyanatha Aiyar next complained that the order of restitution was passed without notice to his client. To this Mr. Narayanaswami Aiyar attempted the answer that no notice was necessary under Order 21, Rule 22, since the execution petition was being filed within two years of what may be called the date of the decree. To this it was replied that Order 21, Rule 22, has no application to the matter on hand; whether that be so or not, we are clear in our mind that the appellant has not been prejudiced in any manner. Before the learned Subordinate Judge he could not have raised any points that have not been raised here, and the result could hardly have been different.

13. In the result, therefore, the appeal fails and is dismissed with costs.


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