(1) The first defendant appeals from the judgment and decree dated 30-11-1955 passed by the learned Subordinate Judge of Madurai in O. S. No. 56 of 1955.
(2) The first defendant had mortgaged his house, in favour of one Valliyappa Chettiar. He instituted O. S. No. 358 of 1949 on the file of the District Munsif, Madurai Town, to enforce the mortgage. A decree for sale was passed in that suit. In execution of the decree the property was sold in court auction on 5-3-1951. The plaintiff, who had been impleaded in that suit as puisne mortgagee purchased the property at the auction and duly obtained a sale certificate. She applied for delivery of the property in E. A. No. 194 of 1954. At that time a portion of the house was in the occupation of the appellant and the other portions were in the occupation of three tenants.
The plaintiff's witnesses say that the three tenants attorned to the plaintiff, that the first defendant vacated the portion which was in his occupation, that the plaintiff leased that portion to one Rajathi Ammal and that complete possession of the house was thus delivered to the plaintiff through court. The first defendant admits that the three tenants attorned to the plaintiff and that he attested the endorsement on the delivery warrant that the house had been delivered to the plaintiff through court.
In regard to the portion which was in his occupation at the time of the delivery, the first defendant says that Rajathi Ammal executed a lease deed in respect of that portion and that he attested that lease deed. Subsequently, the plaintiff was paying municipal taxes in respect of the property. Rajathi Ammal sent rent by money order for a few months to the plaintiff for the portion of the house covered by the lease deed which had been executed by her. She failed thereafter to pay rent. The plaintiff filed M. B. P. No. 502 of 1954 before the Additional Rent Controller, Madurai, under the Madras Buildings (Lease and Rent Control) Act, 1949 (hereinafter referred to as the Act) for evicting her. The Additional Rent Controller passed an order under S. 7 of the Act for eviction of Rajathi Ammal.
(3) The property was situate in the city of Madurai. Under Sec. 9 of the Act, an application for execution of the order for eviction had to be made to the District Munsif, Madurai Town. The plaintiff applied in E. P. No. 779 of 1954 on the file of the District Munsif, Madurai Town, for delivery of the property in execution of the order which had been passed against Rajathi Ammal in M. B. P. No. 502 of 1954 on the file of the Additional Rent Controller, Madurai. Delivery was ordered. When the plaintiff went to take possession, the appellant obstructed. The plaintiff filed E. A. No. 931 of 1954 under Or. 21 rule 97 C. P. Code (hereinafter referred to as the Code) for the removal of obstruction and for delivery.
The District Munsif passed an order under O. 21 rule 98 of the Code directing that the plaintiff be put in possession of the property. The first defendant preferred an application in revision (C. R. P. No. 31 of 1955) to the District Judge, Madurai, under Sec. 12-B of the Act. The District Judge set aside the order passed by the District Munsif. Thereupon the plaintiff instituted under O. 21 rule 103 of the Code, the suit which has given rise to this appeal praying that the summary order passed by the District Judge in C.R.P. No. 31 of 1955 be set aside. The Subordinate Judge granted the plaintiff a decree setting aside the order passed by the District Judge in C.R.P. No. 31 of 1955 on his file. The first defendant appeals.
(4) The suit was instituted against the first defendant and his sons, defendants 2 and 3. The suit has been dismissed as against defendants 2 and 3. The plaintiff has not appealed from the decree dismissing the suit against defendants 2 and 3.
(5) The first defendant pleaded that the plaintiff who had purchased the property in court auction in O. S. No. 358 of 1949 had agreed to sell the property to the first defendant and that he was in possession in pursuance of that agreement. The learned subordinate Judge found that the agreement pleaded by the first defendant was not true. At the hearing of the appeal, the appellant's learned counsel said that he did not propose to argue that the learned Subordinate Judge's finding on that point was wrong. The learned Subordinate Judge has given adequate reasons in support of the conclusion that the agreement pleaded by the first defendant was not true. We see no reason to differ from his conclusion on that point. It follows that, provided the suit instituted by the plaintiff is maintainable the first defendant does not have, as regards the property ordered by the Additional Rent Controller in M. B. P. No. 502 of 1954 to be delivered to the plaintiff any title on the basis of which he could resist the plaintiff taking possession of the property through court.
(6) The appellant's learned counsel contends that the suit instituted by the plaintiff to set aside the order passed by the District Judge in C. R. P. No. 31 of 1955 on his file is not maintainable. The argument is that the effect of Ss. 9, 12(4) and 12-B of the Act is to make the order of the District Judge final and not liable to be questioned in any court of law by way of suit or otherwise. That argument makes it necessary for us to examine the scheme of the Act in relation to orders, appeals, revision and execution embodied in Ss. 7, 9, 12 and 12-B of the Act.
(7) Section 7 of the Act provides for applications for eviction being made and orders being passed either allowing or rejecting such applications. An order passed by the Controller either ordering eviction or rejecting the application under Sec. 7 is subject to appeal under Sec. 12. An order passed by the appellate authority under Sec. 12 is subject to revision under S. 12-B. The Controller who passes orders under Sec. 7 is ordinarily not a civil court. Section 12 authorises the State Government, to confer on such officers and authorities, as they think fit the powers of appellate authorities for the purposes of the Act. The Government have constituted District Munsifs and Subordinate Judges appellate authorities under S. 12, S. 12-B provides for revision of orders passed by an appellate authority under Sec. 12. The authority exercising powers of revision under S. 12-B in the district is the District Court, Section 12(4) enacts:
"The decision of the appellant authority, and subject to such decision an order of the Controller shall be final and shall not be liable to be called in question in any court of law except as provided in S 12-B."
Execution of orders of eviction passed by the Controller under Sec. 7 where there has been no appeal, or by the appellate authority under Sec. 12, or by the District judge on revision under Sec. 12-B, is provided for by S. 9 of the Act. Section 9 enacts:
"Every order made under S. 7............ and every order passed on appeal under S. 12 or on revision under Sec. 12-B shall be executed.......... elsewhere (than in the City of Madras) by the District Munsif........ having original jurisdiction over the area in which the building is situated.............. as if it were a decree passed by him."
(8) The question whether the vesting of jurisdiction in the District Munsif to execute an order of eviction renders the procedure prescribed by the Code in relation to execution applicable to execution of the order of eviction was considered in Thangasami Chettiar v. Bapoo Sahib, . The rule of law applicable to such a situation
enunciated by Viscount Haldane L. C. in National Telephone Co. Ltd., v. Postmaster General, 1913 A. C. 546 was quoted, namely,
"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."
To the same effect was the observation of Varadachariar J. in Marudamuthu v. Hindu Religious Endowments Board Madras, 1937-2 Mad LJ 175: (AIR 1937 Mad 653) "once a matter comes before a regular civil court its further course will be governed by the provisions of the Code." The question whether execution under S. 9 of the Act was governed by provisions of the Code was thus answered in the judgment in Thangasami Chettiar's case, , delivered by one of us on behalf of the Bench that decided that case:
"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 machinery set up by Madras Act XV of 1946 and the provisions thereof permit."
Madras Act XV of 1946 was superseded by Madras Act XXV of 1949. The result is that, on an application for execution of an order of eviction passed by the Controller being presented to the concerned District Munsif, he has to execute the order as if it were a decree for possession passed by him. The procedure applicable is the procedure laid down in the Code in regard to execution of decrees for possession except to the extent to which such procedure is modified by express statement in the Act.
(9) Orders passed in execution of a decree for possession are either orders passed under S. 47 of the Code between the parties to the petition or their representatives-in-interest, or orders passed under O. 21 Rr. 98, 99 or 101 of the Code. An order passed under S. 47 is subject to appeal to the court to which appeals ordinarily lie from the court of the District Munsif. Against orders passed under Rr. 98, 99 or 101, the aggrieved party has a right of suit under O. 21 R. 103. The legislature considered that in view of the very restricted scope of questions likely to arise in execution between the parties to the order for eviction or their representatives-in-interest it was not necessary that orders passed as between the parties or their representatives should be subject to appeal under S. 47 of the Code. The legislature gave effect to that decision by enacting the following proviso to S. 9 of the Act.
"Provided that an order passed in execution under this section shall not be subject to an appeal, but shall be subject to revision under S. 12-B".
Orders passed under rules 98, 99 and 101 of the Code might affect title to the property as between the holder of the order for eviction and third parties. In regard to such questions there would have to be a regular trial subject to the rights of appeal provided by the Civil Procedure Code. In regard to these orders, therefore, no modification of the procedure prescribed by the Code was made in S. 9 of the Act. Hence, the general rule that orders passed in execution are governed by the provisions of the Code remains in operation in relation to orders passed under Rr. 98, 99 and 101 of the Code.
(10) Section 12-B enacts, that, in the case of an authority empowered by S. 9 to execute an order for eviction and functioning in a district, the District Court concerned may exercise powers of revision. On its own language, S. 12-B may appear to authorise the exercise of powers of revision by the District Judge in regard to all orders passed in execution of an order of eviction inclusive of orders passed under Rr. 98, 99 and 101 of the Code. But, in regard to execution, S. 12-B has to be read along with S. 9 Section 9 provides for powers of revision being exercised in relation only to orders which would otherwise be subject to appeal under S. 47 of the Code.
Section 12-B has, on this matter, the effect only of designating the authority competent to exercise the powers of revision mentioned in the proviso to S. 9 of the Act. Section 12-B does not authorise the exercise of powers of revision by the District Judge in relation to orders which will not be subject to appeal, that is to say orders governed by Rr. 98, 99 and 101 of O. 21 of the Code.
(11) In Madavi Ammal v. Nallammal, , Raghava Rao J. said in relation to an order passed under O. 21 R. 98 of the Code, in the course of execution of an order for eviction, that the order passed under O. 21 R. 98 could be revised under S. 12-B of the Act. Speaking with respect, there was no discussion of the point and the background furnished by S. 9 to S. 12-B of the Act was not considered. On that point, that decision is hereby overruled.
(12) The order passed by the District Judge in C. R. P. No. 31 of 1955 was an order passed without jurisdiction. The plaintiff filed a suit under O. 21 R. 103 to set aside the order and at the same time filed a civil revision petition to this court. The civil revision petition was ultimately not pressed because of the pendency of the suit and was dismissed. The appellant's learned counsel contends that, because the civil revision petition filed by the plaintiff in this court was dismissed as not pressed, the order of the District Judge in C. R. P. No. 31 of 1955 has become final and that an order passed under S. 12-B by the District Judge is not liable to be set aside by a suit under O. 21 R. 103.
The appellant's learned counsel's argument is that since the Act is a self-contained piece of legislation in the matter of eviction of tenants, the only provision relating to execution is the provisions made in S. 9 and that all orders passed in execution should be deemed to be orders passed under S. 9 to which the provisions of the Code would not be applicable. It is unnecessary to enter into any discussion of the argument because lays down that the procedure applicable to the execution of orders of eviction is the procedure prescribed by the Code, subject only to such modifications as are expressly made in the Act.
In relation to orders passed in proceedings between the holder of the order of eviction and third parties, the Act does not modify the procedure prescribed by Rr. 97 to 103 of O. 21 of the Code. Title of third parties could obviously not have been intended by the legislature to be investigated and finally decided in an application made under S. 9 and in an application for revision made under S. 12-B of the Act. We hold that the suit instituted by the plaintiff under O. 21 R. 103 was maintainable.
(13) The next point urged by the learned counsel for the appellant is that the suit was not cognizable by the Subordinate judge. The plaintiff prayed that the order passed by the District Judge in C.R.P. No. 31 of 1955 be set aside and that the property be delivered to the plaintiff. There could of course be no decree for delivery in this suit. The decree could only set aside the order passed in C. R. P. No. 31 of 1955 and declare that the plaintiff was entitled to possession of the subject matter of the M. B. P. No. 502 of 1954. That precisely is the decree, which the learned Subordinate Judge passed. That decree entitled the plaintiff to take delivery in execution of the order of eviction, free of obstruction on the part of that first defendant.
The subject matter of the relief was valued in the plaint, for purpose of jurisdiction at Rs 8000. The schedule of property appended to the plaint described the entire house and not merely the portion that had been leased to Rajathi Ammal. Since the immoveable property with respect to which relief was prayed, was only the portion that had been leased to Rajathi Ammal, the value given by the plaintiff should be deemed to be the value of that portion of the house notwithstanding that the entire house was described in the schedule appended to the plaint.
No objection was taken in the lower court that the subject matter of the suit, namely, the portion of the house that had been leased to Rajathi Ammal was less than Rs. 8000 in value or that the suit was not cognizable by the Subordinate Judge. It is not open to the appellant to state in Appeal that the value of the subject matter of the suit was not Rs. 8000.
(14) In the application which the plaintiff filed in the executing court for removal of obstruction, the plaintiff said that the first defendant was a sub-tenant under Rajathi Ammal. The lower court did not find that the first defendant was a sub-tenant of Rajathi Ammal. The lower court considered the question of title and said that, since the plaintiff was the owner of the property and since the alleged agreement for reconveyance was not true, the plaintiff was entitled to possession. The appellant's learned counsel contends that the only question which was open for investigation by the lower court in the suit filed to set aside the order passed in execution proceedings was the question whether the appellant was a sub-tenant of Rajathi Ammal and that the lower court could not consider any other question relating to the plaintiff's title. We are unable to agree.
(15) A suit under O. 21 R. 103 is not in the nature of an appeal from an order passed under Rr. 98, 99 or 101 of the Code. Rules 98 to 102 are intended merely to ensure that, in execution of a decree for possession obtained against A, B who is in possession is not dispossessed. If B is in possession of the property on the date of the decree claiming in good faith to be in possession on his own account. B will be entitled to retain such possession as against every person other than the true owner. Therefore so long as B does not claim title through A, B would be entitled to retain possession as against D, the holder of the decree against A. In such a case, if B is dispossessed in execution of the decree, he should be restored to possession pending determination of D's title as against B. For the same reason, if B was present at the spot at the time, delivery is sought to be effected in execution of the decree for possession, B would be entitled to obstruct delivery.
Such obstruction should be maintained pending determination of title. But, where B's obstruction is wanton and is made without just cause, he should be dispossessed in execution of the decree and any claim that he may still make to be entitled to possession should be made by him in a suit instituted by him. These are the principles that Rules 98 to 102 of order 21 embody. In a suit instituted under O. 21 Rule 103 by the decree-holder who does not obtain possession, or by the person in possession who is dispossessed, the questions that are tried are questions of title of possession. The argument that the questions which the court trying a suit under Order 21 rule 103 should determine are limited to the questions which were raised during the enquiry held under rules 98 to 101 is plainly untenable.
(16) It is at the same time true that a person, D finding B in possession of the property to which D lays claim cannot obtain a collusive order of eviction under the Act as if A was D's tenant, and then use that order for the purpose of obtaining a warrant for delivery and, when delivery is resisted, for instituting a suit under O. 21 Rule
103. A collusive decree or order is void as against every person who is not a party to the decree or order. Therefore, in this case, if the order of eviction obtained by the plaintiff against Rajathi Ammal was obtained by collusion, that order cannot, by utilisation of the machinery provided by rules 97 to 99 of O. 21 of the Code, be made the basis of a suit under O. 21 rule 103.
The learned District Judge in his order in C. R. P. No. 31 of 1955 said that the plaintiff and Rajathi Ammal had colluded for the purpose of securing an order of eviction. We consider that observation groundless. Rajathi had executed a lease deed in favour of the plaintiff. The appellant had attested the lease deed. Rajathi Ammal had thereafter sent rent by money order to the plaintiff. The tenant whose eviction the plaintiff could seek under the Act was Rajathi Ammal The application made by him under the Act for eviction and the order passed by the Rent Controller cannot, in any sense, be regarded as due to or as the result of collusion.
(17) We find that, in this suit instituted by the plaintiff in the lower court under O. 21 rule 103 of the Code, the lower court was competent and indeed bound to hear and decide all the questions of title that were raised.
(18) The last point urged by the appellant's learned counsel was that, in the decree passed by the learned Subordinate Judge, he should have set aside the summary order passed by the District Judge in C. R. P. No. 31 of 1955 on his file to the extent only of a third share in the property. The argument is that the property belonged to the appellant and his sons and that, since the suit was dismissed as against the sons, the summary order should have been set aside in regard only to a third share.
The order passed by the learned District Judge states that the appellant obstructed delivery. The Subordinate Judge says in his judgment that the appellant obstructed delivery claiming to be in possession in pursuance of an agreement for reconveyance. The Subordinate Judge finds that the alleged agreement is not true. It follows that the obstruction was made without just cause. At the proceedings before the District judge, the appellant's sons were not parties.
The summary order had to be set aside as regards only the persons who were parties to it. The Subordinate Judge who found that the property belonged to the plaintiff and that the appellant's obstruction was without justification had necessarily to pass a decree setting aside the summary order as a whole as between the persons who were parties to the summary order and could not set aside the summary order as regards only a part of it. His decree, on that point, is correct.
(19) The appeal is dismissed with costs, subject to the general alteration in Cl. 2 of the decree of the lower court that the words "the Additional Rent Controller" be substituted for the words "the District Munsif's Court."
(20) Appeal dismissed.