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S.M.A. Abdul Fatha and ors. Vs. Mohammad Jabbar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtChennai High Court
Decided On
Reported in(1956)2MLJ475
AppellantS.M.A. Abdul Fatha and ors.
RespondentMohammad Jabbar and ors.
Cases ReferredDevichand Moolchand v. Dhanraj Kantilal
Excerpt:
- - he relies upon the well-known privy council decision in abdulla khan v. but it is clearly stated there that the question whether an application for bringing on record the legal representative of a deceased petitioner or respondent before the rent controller would be competent need not be decided.govinda menon, j.1. the petitioner in this civil revision petition is the legal representative of a mortgagor-lessee against whom an application for eviction under the madras buildings (lease and rent control) act, 1949, had been filed in the court of the house rent controller, nagapattinam. by an order dated 12th september, 1949, the house rent controller directed eviction. the mortgagor-lessee died on 17th november, 1949 and an application to bring on record his legal representative and continue execution against him was filed only in 1954. before the appellate court, the only question raised was as to whether the order for eviction was illegal, irregular and improper and is liable to be set aside. the learned judge found that there was no illegality, irregularity or impropriety and.....
Judgment:

Govinda Menon, J.

1. The petitioner in this Civil Revision Petition is the legal representative of a mortgagor-lessee against whom an application for eviction under the Madras Buildings (Lease and Rent Control) Act, 1949, had been filed in the Court of the House Rent Controller, Nagapattinam. By an order dated 12th September, 1949, the House Rent Controller directed eviction. The mortgagor-lessee died on 17th November, 1949 and an application to bring on record his legal representative and continue execution against him was filed only in 1954. Before the appellate Court, the only question raised was as to whether the order for eviction was illegal, irregular and improper and is liable to be set aside. The learned Judge found that there was no illegality, irregularity or impropriety and dismissed the revision petition. The mortgagor-lessee's legal representative has filed this revision petition.

2. Mr. K.S. Naidu on behalf of the petitioner contends that as it was Admitted in the petition for eviction that the mortgage and the lease-back were of even date, viz., 1st January, 1943, the two documents should be read as part and parcel of one and the same transaction with the result that there is no relationship of the lessor and lessee existing between the parties. The so-called 'rent' under the lease deed should be deemed to be 'interest' on the mortgage and the lease deed is only a device for collecting such interest. He relies upon the well-known Privy Council decision in Abdulla Khan v. Basharat Hussain . The answer to this contention is that neither the mortgage nor the lease deed has been filed in the Courts below; nor were they produced in this Court. A large body of case law has sprung up in this Court subsequent to this Privy Council decision, where this Court has come to the conclusion that in certain circumstances the two documents should be read as different transactions; e.g., see the decisions in Abdul Khadir v. Subramanya Pattar : AIR1940Mad946 and Krishna Menon v. Kunjandi : AIR1941Mad826 . There are other cases also on the point. In the absence of any evidence adduced by the production of the mortgage deed and the lease deed, it will not be advisable to allow the petitioner to raise that point in this Court. The contention is therefore overruled.

3. The second contention of the learned Counsel is that execution of the order for eviction cannot be had against the legal representative because under the Act as it stood at the time the order was made, the provisions of Order 22, Civil Procedure Code had not been made applicable. Learned Counsel relied upon the decision in Devichand Moolchand v. Dhanraj Kantilal : (1948)1MLJ276 , where the learned Chief Justice has held that the provisions of the Civil Procedure Code have not been made applicable to proceedings before the House Rent Controller. But it is clearly stated there that the question whether an application for bringing on record the legal representative of a deceased petitioner or respondent before the Rent Controller would be competent need not be decided. Section 9 of the Madras Buildings (Lease and Rent Control) Act, 1949, definitely lays down that an order for eviction can be executed before a civil Court as if it is a decree. This means that in the execution of such an order, all the provisions of Section 47 and Order 21 are attracted. If that is so, Order 21 allows a decree to be executed against the legal representative apart from Order 22 of Code of Civil Procedure. In these circumstances, I do not think that any interference is called for, especially since the mortgagor-lessee is a recalcitrant person who squats upon the property without paying any rent.

4. The Civil Revision Petition is dismissed with costs.


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