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Chand Basha Vs. Pyari Bi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1978)1MLJ46
AppellantChand Basha
RespondentPyari Bi
Cases ReferredThalai Vadivu Anandan v. Venugopala Chettiar
Excerpt:
- - as the defendant failed to deliver possession by the prescribed date, the plaintiff sought execution of the decree for delivery of possession and delivery was also ordered by 10th of june, 1954 by the executing court. against that order the tenant appealed but without success......execution in e.p.no. 622 of 1974. by that time section 30 of the tamil nadu buildings (lease and rent control) act here in after referred to as the main act was amended by act xxiii of 1973. as a result of the said amendment, the building in respect of which the decree for eviction was obtained by the respondent in the said suit came within the purview of the main act. taking advantage of that situation, the appellant contended before the executing court that the decree for eviction cannot be executed after the coming into force of the amending act. this objection was, however, refected by the executing court, and the execution proceedings were allowed to go on.2. on appeal, the lower appellate court also agreed with the view of the executing court and held that under the decree for.....
Judgment:
ORDER

G. Ramanujam, J.

1. The respondent herein obtained a decree dated 12th. April, 1973 for eviction of the appellant herein O.S. No.7420 of 1971 an the file of the City Civil Court, Madras. The decree granted the appellant four months' time to vacate. On 5th August, 1974 the said decree was put into execution in E.P.No. 622 of 1974. By that time Section 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act here in after referred to as the main Act was amended by Act XXIII of 1973. As a result of the said amendment, the building in respect of which the decree for eviction was obtained by the respondent in the said suit came within the purview of the main Act. Taking advantage of that situation, the appellant contended before the executing Court that the decree for eviction cannot be executed after the coming into force of the Amending Act. This objection was, however, refected by the executing Court, and the execution proceedings were allowed to go on.

2. On appeal, the lower Appellate Court also agreed with the view of the executing Court and held that under the decree for eviction passed earlier to the coming into force of the amending Act, the respondent decree-holder had acquired a vested right, that such vested rights cannot be taken away except by giving retrospective effect to the amending Act, and that therefore the decree-holder is entitled to execute the decree for eviction notwithstanding the amending Act. The view taken by both the Courts below has been challenged in this appeal by the tenant-appellant.

3. According to the learned Counsel for the appellant the Courts below have not properly appreciated the contention put forward by him. He states that it is not his case that the amending Act is retrospective in character so as to unsettle or take away any vested right. His contention before the Courts below was that in view of the amending Act the provisions of the main Act will apply to the building in respect of which the decree for eviction has been obtained by the respondent, and that as such the executing Court can-not execute the decree for eviction in the face of Section 10 of the main Act which specifically says that a tenant shall be evicted whether in execution of the decree or otherwise, except in accordance with the Sections 14 to 16 of the Act. According to the learned Counsel it is not necessary for him to question the validity of the decree on the ground that the amending Act is retrospective in character, and it is enough for him to show that notwithstanding the validity of the decree it cannot be put into execution in view of Section 10 of the principal Act. The learned Counsel for the appellant relies on a Bench decision of this Court in Thalai Vadivu Anandar v. Venugopala Chettiar : (1960)1MLJ356 , in support of his contention that the decree in this case cannot be executed after the coming into force of the amending Act.

4. A perusal of the judgment of the Courts below indicate that they have come on a wrong track as pointed out by the learned Counsel for the appellant. We are not concerned in this case as to whether the amending Act can unsettle or disturb vested rights. The point urged by the learned Counsel for the appellant is that by virtue of Section 10 of the Rent Control Act, the executing court cannot evict the tenant in pursuance of the decree obtained by the respondent and that the remedy of the decreeholder is only to proceed to evict the tenant under the provisions of the Rent Control Act. His contention is not that the decree has become a nullity as a result of the retrospective operation of the amending Act. Therefore, the only question that is to be considered in these proceedings is to see whether the executing Court is powerless to execute the decree for eviction in view of Section 10 of the Act.

5. It is true, the respondent has obtained a decree for eviction against the appellant in O.S. No. 7420 of 1971, and the four months period given to the appellant to vacate had expired, and as such be is entitled to put the decree into execution. In this case the execution petition was filed on 5th March, 1974. But however, even on 20th June, 1973 the amending Act XXIII of 1973 had come into force as a result of which Section 30 of the principal Act came to be amended. The result of the amendment is that the buildings constructed more than five years before would be governed by the provisions of the main Act. As a result of the change in the statutory provisions, the building in respect of which the decree for eviction has beer obtained earlier by the respondent has come to be governed by the provisions of the Act for the first time. The question is whether the change brought about in the statute has affected the powers of the executing Court in view of Section 10 which applied to the building with effect from 30th June, 1973, the date of the amendment of Section 30.

6. The execution petition was filed on 5th March, 1974 and on that date the provisions of the Act applied to the building in question. Section 10 prohibited the eviction of tenants in execution of decrees or otherwise, except by invoking the procedure for eviction laid down under the provisions of the Rent Control Act. The executing Court cannot ignore a statutory provision which prohibits eviction of a tenant except in certain stated circumstances and proceed to execute the decree as if there is no restraint on its power. I am inclined to agree with the contention of the learned Counsel that in view of Section 10 of the Act which applies to the building with effect from 30th June, 19/3, the executing Court is powerless to execute the decree for eviction obtained earlier by the respondent.

7. This view of mine finds support from the decision of a Division Bench of this Court in Thalai Vadivu Anandar v. Venugopala Chettiar : (1960)1MLJ356 , which is directly in point. In that case a suit had been filed for recovery of possession of certain property with past and future rents against the person in occupation. As a result of a compromise in that suit, there was a decree directing the defendant to deliver possession of the property on a particular day. As the defendant failed to deliver possession by the prescribed date, the plaintiff sought execution of the decree for delivery of possession and delivery was also ordered by 10th of June, 1954 by the executing Court. The defendant at that stage filed an application for stay of the execution of the order on the ground that the Rent Control Act had since been extended to the village in which the property was situate on and from 16th of June, 1954, and that therefore, the decree-holder cannot evict him. The executing Court overruled that objection and directed delivery. Against that order the tenant appealed but without success. There was a Civil Miscellaneous Second Appeal to this Court which was allowed by Panchapakesa Ayyar, J. The learned Judge after an elaborate discussion of the several decisions cited before him held that Section 7 of the Rent Control Act which become applicable to the building from 16th June, 1964 was a complete answer to the claim of the decree-holder for eviction of the tenant. The decision of Panchapakesa Ayyar, J., was questioned in a letters patent appeal. Rajamannar, CJ., speaking for the Division Bench, has taken the view that as by the time of filing the execution petition the Rent Control Act had been extended to the village in which the property was situated, the executing Court was bound to apply the provisions of the Act and that any eviction even in the Pending execution petition will be contrary to Section 7.The decision in that case squarely applies to the facts of this case. When the decree for eviction was passed by the trial Court in this case, the Rent Control Act did not apply to the building in question. But by the time the decree passed in that suit could be executed, the Rent Control Act came to be applied to the building in question as a result of the amending Act XXIII of 1973. Therefore, the executing Court is under a duty to apply the provisions of the statute which have come into force, and it cannot overlook the specific prohibition contained in Section 10 of that Act which says that no tenant shall be evicted either in pursuance of a decree or otherwise, except under the provisions of the Rent Control Act. Therefore, even though the decree passed in the suit is valid and its validity is not affected by the provisions of the amending Act, it has ceased to be executable so long as the Rent Control Act is applicable to the building in question.

8. The learned Counsel for the respondent would however rely on a decision of a Division Bench of this Court in A.S.No. 518 of 1973 reported in Killick Nixon Ltd. v. V.B. Narayana Rao. (1974) 1 M.L.J. 16 (S.N.) in support of his contention that as the provisions of the amending Act are not retrospective, the executability of the decree passed earlier cannot be questioned. In that case there was a suit in ejectment after termination of the tenancy in respect of a building in Madras City, as the building, having been constructed after 1960, stood exempted under the provisions of Section 30 of the Rent Control Act. The Court passed a decree for possession. The matter was taken on appeal to this Court. When the appeal was pending Section 30 of the Rent Control Act was amended so as to withdraw the exemption granted in respect of buildings constructed before a particular date. The result was the exemption under Section 30 of that Act was not available in respect of the building. At the stage of the appeal it was urged by the tenant that in view of the withdrawal of the exemption under Section 30, the building is governed by the provisions of the Rent Control Act, and therefore, the decree in ejectment passed by the trial Court has to be set aside by the appellate Court. This Court considered the scope of the amending Act XXIII of 1973 which came into force on 30th June, 1973 and held that the amending Act has no retrospective effect and therefore it cannot take away the rights which have already accrued to the parties as a result of orders in proceedings initiated earlier to the coming into force of the amending Act, that as the amending Act does not indicate as to what is to happen to the decisions of civil Courts rendered prior to the amendment, it should be taken that it does not affect the pending proceedings or the decisions rendered therein. In that view the Court held that the decree in ejectment passed against the tenant had not been invalidated by the amending Act, and therefore, the appellate Court was at liberty to dispose of the appeal on merits, leaving the question of executability of the decree to be considered at the execution stage. A perusal of the said judgment shows that the Court felt that it was unnecessary at that stage to go into the question of executability of any decree that may be passed, that the validity of a decree is one thing, and that its executability is another, and that the Court in passing a decree is not concerned with its executability. I do not see how the said decision will help the respondent in this case. In that case the contention urged by the tenant was that after coming into force of the amending Act which withdrew the exemption granted to the building under Section 30 of the Act no decree in ejectment could be passed by a civil Court. This contention has been rejected by the Division Bench on the ground that as the amending Act does not touch or affect the proceedings that might have been initiated earlier in the civil Court, it cannot be taken that all the earlier decrees can be said to be nullified by the amending Act, and that the question of executability has to be decided at the stage of execution with reference to the provisions of the amending Act. In that case, the attack against the decree based on the provisions of the amending Act was held unsustainable, without going into the question of the executability of the decree. Such a question has been decided as already stated, specifically in Thalai Vadivu Anandan v. Venugopala Chettiar : (1960)1MLJ356 . I have to therefore allow this appeal holding that the decree passed in O.S.No. 7420 of 1971, even though valid, is not executable so long as the provisions of the Rent Control Act continue to apply to the building. There will be no order as to costs. No leave.


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