S. Mohan, J.
1. This case illustrates how very resourceful a judgment-debtor could be and ingenuously set at naught the valid orders of Court, including a compromise decree. Undaunted by the adverse judgments right from 1963, the judgment--debtor has been making repeated onslaughts under the umbrage of some technical plea or other and thereby has been preventing the decree-holder from realising the fruits of the decree.
The facts relating to the civil miscellaneous second appeal are as follows:
2. The first defendant in O.S. No. 30 of 1962 on the file of the District Munsif's Court of Thanjavur, and respondent in the Execution Petition, is the appellant. O.S. No. 30 of 1962 was a suit filed by the plaintiff, Hazarath Syed Sha Mian Sakkab Kadhiri Thakal, represented by its Trustee, for the recovery of the vacant possession from defendants 1 and 2, after removing the superstructure put up thereon. The case of the plaintiff was that the property was leased out in favour of defendants 1 and 2 (the second defendant being the mother of the first defendant) and they sublet the property in favour of the third defendant. Defendants 1 and 2 put up a superstructure and the lease period having expired, they have got to surrender vacant possession, after removing the superstructure. Since vacant possession was not so delivered, the necessity for the suit.
2-a. Pending the suit, I.A. No. 564 of 1963 was filed, whereby the parties entered into a compromise. The said compromise memorandum, dated 28th of June, 1963 inter alia stated as follows: (I am extracting the compromise memorandum since that is material for a decision in the present case):
1. The parties agree that a Commissioner may be appointed to make a local investigation of the suit property to assess the value at present of the superstructure that stands on the suit site and to report the same to this Hon'ble Court.
2. The parties further agree that on this Hon'ble Court enquiring into the Commissioner's report and fixing the price, the plaintiff is to buy the superstructure from defendants 1 and 2 at a price to be fixed by this Court after deducting rent due from them for the site till the time of purchase. Defendants 1 and 2 may receive the amount to be deposited after delivery of the possession.
3. On 6th of August, 1963, the learned District Munsif decreed the suit, where-under the plaintiff was directed to purchase the suit building and to deposit the sale consideration of Rs. 6,000 on or before 6th of February, 1964. It may be relevant to note at this stage that O.P. No. 20 of 1963 was filed by the second defendant, under Section 9 of the Madras City Tenants (Protection) Act, 1921 (Tamil Nadu Act III of 1922), hereinafter referred to as the Act. But, that was rejected, on the ground that the suit site being non-residential in character, no benefit could be claimed under the Act, as it was then applicable to Thanjavur. Further, the application was beyond the period of limitation of one month.
4. On appeal, the sale consideration was increased to Rs. 10,000 by the lower appellate Court. But, when Second Appeal No. 1658 of 1964 was preferred, the following decree was passed on 5th November, 1968:
The parties agree that the appellant (plaintiff) may deposit Rs. 2,000 more, in addition to the sum of Rs. 6,000 he has already deposited within. 2 months from this date and the respondent will give possession immediately on deposit. On failure to do so execution can be taken out immediately and proceedings taken. The respondents 1, 4 and 5 can withdraw the sum of Rs. 6,000 already deposited as well as Rs. 2,000 to be deposited only after giving possession. Out of this amount the rents upto date would naturally be deducted. The parties will bear their own costs.
The plaintiff, on the strength of this decree, preferred E.P. No. 31 of 1969. Delivery was ordered. Thereupon C.M.A. No. 116 of 1971 was preferred. That was also dismissed. As against the same, A.A.O. No. 90 of 1972 was filed before this Court and that too was dismissed by Gokulakrishnan, J.
5. At this stage, one important fact is to be stated. Pending C.M.A. No. 116 of 1971, the first defendant filed C.M.P. Nos. 12552 and 12553 of 1970 in S.A. No. 1658 of 1964 to clarify that the compromise would be binding only between the appellant (the mother) and the 5th respondent, inasmuch as the first respondent therein remained ex parte. Consequently, according to him, the terms of the decree in S.A. No. 1658 of 1964 should be confined only to the quantum of valuation. Later, an application was filed for staying all further proceeding in E.P. No. 31 of 1969. Ramamurthi, J., by his order dated 13th November, 1970 held:
There is no substance in the petitions. The petitioner did not care to participate even though he was duly served in, the second appeal both in his own capacity as the first respondent as well as in his capacity as the legal representative of his deceased mother. The judgment also indicates that the compromise was merely the acceptance of the suggestion of the Court in the course of the hearing, to the effect that the compensation amount might be fixed at Rs. 8,000. It is clear that the petitioner herein is taking advantage of the fact that in the preamble portion of the judgment there is some reference to the agreement between the parties. That apart, the petitioner who did not participate in all these proceedings, is not entitled to file this petition. It is clear that he has been set up by the other members of the family to rake up the question over again after having obtained an advantage of the amount being fixed at Rs. 8,000 by this Court (High Court).
After all these proceedings, when E.P. No. 933 of 1973 was filed under Order 21, Rule 35, Civil Procedure Code, for delivery of possession, the first defendant opposed delivery, contending, chiefly, that he was not a party to the compromise, dated 28th June, 1963. In any event, no rights would accrue in favour of the decree-holder after the passing of the Amending Act (Tamil Nadu Act XVI of 1964). In view of Section 3 of the said Act, the proceedings by the plaintiff will have to abate and no rights remain for being enforced.
6. The learned Additional District Munsif of Thanjavur held:
The dispute between the parties has been fully and finally set at rest in S.A. No. 1658 of 1964 and A.A.O. No. 90 of 1972. The High Court has also passed a decree in S.A. No. 1658 of 1964, finally determining the dispute. Therefore, the decree in S.A. No. 1658 of 1964 and the judgment in A.A.O. No. 90 of 1972 are binding upon the respondent in this petition. For all these reasons, I hold that Act XVI of 1964 is not applicable to the decree passed in this suit.
7. On appeal, in C.M.A. No. 118 of 1974, the learned District Judge confirmed, the finding of the trial Court mainly on the ground of constructive res judicata. He further held that after the Amending Act of 1964 came into force and after the notification extending it to Thanjavur town, the appellant never claimed the benefits of the Act and was content to enter into a compromise. Therefore, he must be deemed to have waived the benefits under the Act and elected to receive compensation for the superstructure.
8. Aggrieved by this judgment, the present civil miscellaneous second appeal has been preferred.
9. The learned Advocate-General appearing for the appellant, strenuously contends before me that the finding of the lower Appellate Court, and equally the Executing Court, are unsustainable in law. Having regard to the sweeping language of Section 3 of the Amending Act, viz., Tamil Nadu Act XVI of 1964, if the proceedings abate by the operation of legislation, so submits the learned Advocate-General, no question of constructive res judicata or waiver would arise. In support of the same, reliance is placed on the ruling in Patta Iyer v. Arunachala Padayacki : (1973)1MLJ77 .
10. The simple, but effective, reply of Mr. Kothandarama Nainar, Learned Counsel for the decree-holder-respondent is that notwithstanding the reasonings of the Courts below, which may not be quite sound in law, the conclusion is unassailable, since the rights of the parties under the compromise were determined, as early as 28th of June, 1963 long before the Tamil Nadu Act XVI of 1964 came into force. That decree was merely for the purchase of the building on the suit site, in a suit for ejectment. Where, therefore, even before the Amending Act came into operation, the rights of the parties were finally determined, no further right remained under the Madras City Tenants (Protection) Act, 1921, in which event alone, Section 3 of the Amending Act would apply and the proceedings taken out by the landlord will get abated.
11. In order to appreciate the respective contentions, the history relating to this legislation may briefly be noted. The Madras City Tenants (Protection) Act, was extended to Thanjavur by a notification under G.O. No. 1345, with effect from 28th of March, 1956. As a result of the same, all benefits under the Act, both with regard to residential and non-residential buildings were made available to the tenants. The Amending Act XIII of 1960 was passed with the object of withdrawing the protection to tenants of non-residential buildings, as a result of which, the proceedings pending in. Courts in respect of non-residential buildings were extinguished. That was the position till the Amending Act XVI of 1964 was enacted, whereby the original position was restored, the benefits of the Act being extended to non-residential buildings also. The said Amending Act XVI of 1964 was made applicable to Thanjavur by G.O. No. 2622, dated 7th November, 1964. Section 3 of this Act states as follows:
3. Certain pending proceedings to abate.--Every proceeding instituted by a landlord in respect of any non-residential building or part thereof situated in any municipal town specified in the notification issued under Sub-clause (i) of Clause (1) of Section 2 of the principal Act, as amended by this Act and the villages within five miles of such municipal town and pending before any Court or other authority or officer on the date on which the said notification takes effect shall, in so far as the proceeding relates to any matter falling within the scope of the principal Act as amended by this Act in respect of such building or part, abate, and all rights and privileges which may have accrued to that land-lord in respect of any such building or part and subsisting immediately before the date on which the notification aforesaid takes effect shall, in so far as such rights and privileges relate to any matter falling within the scope of the principal Act as amended by this Act, cease and determine and shall not be enforceable:
Provided that nothing contained in this section shall affect any decree or order passed which has been executed or satisfied in full before the date on which the notification aforesaid takes effect.
It may be relevant to note, at this stage, that the compromise in this case was entered into on 28th of June, 1963. Under these circumstances, the only question that would arise is, whether the appellant can claim the benefit of Section 3 of the Amending Act XVI of 1964, though such a plea was not put forth in any one of the prior proceedings.
12. At the outset, I am constrained to state that the reasoning of the learned District Munsif, a portion of which I have extracted above, that the rights of the parties were concluded by the two judgments of this Court in Second Appeal No. 1658 of 1964 and A.A.O. No. 90 of 1972 and hence Act XVI of 1964 is not applicable, is not correct. Equally, the reasoning of the learned District Judge that the principle of constructive res judicata would apply is also incorrect.
13. The learned Advocate-General is right only thus far, since, if the legislation intervenes and says all proceedings shall abate, it is well settled that the decree or order or any proceeding thereon will be unenforceable and will come to a close. It is the Courts which are disabled by the operation of the legislation. It does not depend upon whether such a contention was raised by the party or not. Equally, there cannot be any waiver by a party. The attention of the Court may be drawn to the said legislation and its disability to deal with the matter can be pointed out. It does not matter at what stage the proceedings stand. As a proposition of law, no exception could be taken to this argument of the learned Advocate-General. To the same effect is' the decision, in Pattu Iyer v. Arunachala Padayachi : (1973)1MLJ77 . But I am afraid that that decision has no application to the facts of the present case.
14. If at a time, when Amending Act XIII of 1960 was operating, the parties chose to enter into a compromise on 28th of June, 1964 whereby what was contemplated was a simple purchase of the superstructure at a price to be fixed by the Court, this compromise has nothing to do with the benefits conferred under the Act. What was agitated in Second Appeal was only about the quantum, which ultimately came to be fixed as seen above at Rs. 8,000. Thanks to the appellant, whatever doubts remained about the binding nature of the compromise, by filing C.M.P. Nos. 12552 and 12553 of 1970, the matter was clarified by Ramamurthi, J., by reason of which it is now clear that there is an effective compromise binding on the appellant. It is here, I have to state that the appellant himself was Served both in his personal capacity and also as the legal representatives of his deceased mother, which fact also was noted by Ramamurthi, J., If it is a case of a simple purchase of the superstructure de hors the Act, it cannot be contended at all, that any rights still remained surviving under the Act concerning which proceedings are pending, which would abate under Section 3 of the Amending Act XVI of 1964.
15. As seen above, the Amending Act XVI of 1964 itself was extended to Thanjavur only on 7th November, 1964. Even before that, the rights of the parties were concluded by their entering into a private treaty on 28th June, 1964. Where in execution of the said compromise, execution proceedings are taken for delivery of possession, it cannot be contended, by virtue of Section 3 of the Amending Act XVI of 1964, the said proceedings will abate, since it is totally outside the scope of the Act.
16. It may be of interest to note that as seen from the above narration, O.P. No. 20 of 1963 filed by the Second defendant under Section 9 of the main Act was dismissed. In such a case, no rights survive for the application of Section 3 of the Amending Act. Therefore, I uphold the submission of Mr. Kothandarama Nainar, Learned Counsel for the respondent.
17. In the result, agreeing with the ultimate conclusion of the Courts below, but on a different reasoning, I hold that there are no merits in the Civil Miscellaneous Second Appeal. It will stand dismissed with costs. No leave.