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Vedanayagam Vs. Janaki Ammal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1980)1MLJ226
AppellantVedanayagam
RespondentJanaki Ammal
Cases ReferredMohammed Hussain v. A.K.M. Pitchati
Excerpt:
- .....10 of 1973 which was an application filed by the respondent herein under section 47 of the code of civil procedure for directing the petitioner to pay to the respondent a sum of rs. 2,690 69 with subsequent interest and costs. the question of maintainability of the application under section 47 of the code of civil procedure, had been considered as a preliminary point and against the adjudication of that question, the present civil revision petition has been filed.2. admittedly, the respondent is the owner of the building bearing door no. 24, kasiviswanathan koil street, kumbakonam. the petitioner was a tenant of that building on a monthly rental of rs. 50 payable by first week of every tamil month. the respondent purchased the property on 14th september, 1972, from the previous owner and.....
Judgment:
ORDER

V. Ratnam, J.

1. This is a petition to revise the order of the learned District Munsif, Kumbakonam, in E.A. No. 223 of 1978 in R.C.O.P. No. 10 of 1973 which was an application filed by the respondent herein under Section 47 of the Code of Civil Procedure for directing the petitioner to pay to the respondent a sum of Rs. 2,690 69 with subsequent interest and costs. The question of maintainability of the application under Section 47 of the Code of Civil Procedure, had been considered as a preliminary point and against the adjudication of that question, the present civil revision petition has been filed.

2. Admittedly, the respondent is the owner of the building bearing door No. 24, Kasiviswanathan Koil Street, Kumbakonam. The petitioner was a tenant of that building on a monthly rental of Rs. 50 payable by first week of every Tamil month. The respondent purchased the property on 14th September, 1972, from the previous owner and the petitioner continued to remain in possession of the property as a tenant even after the purchase by the respondent. Since the respondent wanted the building for her own occupation, she applied in R.C.O.P. No. 10 of 1973 for an order of eviction. That application was allowed and the petitioner preferred an appeal in C.M.A. No. 112 of 1973, Sub-Court, Kumbakonam. That appeal was of no avail. Thereafter, the petitioner preferred civil revision petition to this Court in Vedanayagam v. Janaki Ammal C.R.P. No. 3309 of 1975 and the revision ultimately was dismissed confirming the order of eviction passed by the Courts below. It was after the dismissal of the Civil Revision Petition, the respondent filed E.P. No. 124 of 1976 in R.C.O.P. No. 10 of 1973 and took delivery of the property through Court on 31st July, 1976. According to the respondent, at the time when she took delivery. The delivery account showed that the petitioner had committed acts of waste and had caused damage wantonly to the building viz., he had removed four entrances, one almirah fixed in the wall and the planks in the almirah and also removed all electrical wirings, rafters, fence etc. The respondent claimed that in order to carry out the repairs, it would cost her Rs. 2,690 as per the estimate obtained by her. To a notice issued by the respondent on 16th August, 1977, calling upon the petitioner to pay the amount, the petitioner sent a reply setting out false and untenable contentions. The claim made therein by the petitioner, according to the respondent, was totally unsustainable and she is, therefore, entitled to maintain an application under Section 47 of the Code of Civil Procedure, as the claim of damages is one relating to and arises out of the execution of a decree. That application was resisted by the petitioner herein on the ground that he did not cause any damage to the property either want only or by removing the entrances, almirah, pillars, rafters, fence etc. Apart from denying that he had caused damage to the property as alleged by the respondent, the petitioner proceeded to state that he had made improvements to the property and had incurred expenses to the tune of Rs. 1,500 towards the same. The estimate of damages set out by the respondent and claimed by her was characterised as exaggerated and totally unreal. The contents of the delivery account were disputed and it was also stated by the petitioner that that must have been done perhaps in order to fasten liability on him. A legal objection was also raised that Section 47, Civil Procedure Code, will not apply and therefore, the respondent cannot maintain the application filed by her.

3. The learned District Munsif, Kumbakonam who enquired into this application framed a preliminary point for consideration viz., whether the petition as framed is maintainable under Section 47 of the Code of Civil Procedure. Relying upon a judgment of this Court reported in Poomalai v. Ramalingam : AIR1977Mad411 , the learned District Munsif proceeded to hold that the instant case would also be governed by that decision and therefore, the petitioner cannot maintain that the petition is not maintainable under Section 47 of the Code of Civil Procedure. It was also further found that the only course open to the respondent is to claim damages and therefore, the petition under Section 47 of the Code of Civil Procedure, is maintainable.

4. In this civil revision petition, the learned Counsel for the petitioner contends that the decision in Poomalai v. Ramalingam : AIR1977Mad411 does not govern this case.

5. In that case, Ramanujam, J. was dealing with the question of maintainability of an application under Section 47 of the Civil Procedure Code, with reference to a claim of damages by the decree-holder who had obtained a decree for recovery of possession of a building against the judgment-debtor. At the time of taking delivery of the property pursuant to the decree for possession the property was found to be roofless and the walls had been damaged. Thereafter, the decree-holder filed an application under Section 47 of the Civil Procedure Code, claiming damages and that application was resisted by the judgment-debtor on the ground that the claim for damages in the circumstances of that case cannot come within the scope of Section 47, Civil Procedure Code. In dealing with that contention, the learned Judge referred to a decision of the Calcutta High Court reported in Beecharam Paul v. Bhagwan Chunder Ghose (1892) 5 C.L.R. 522 and stated that that decision did not concern itself with the scope of Section 47 of the Code of Civil Procedure, and that the question which arose in that case was entirely different. It was further pointed out that relying on that, a Division Bench consisting of Sadasiva Iyer and Moore, JJ. in Ramu Shettithi v. Maniappa Shettithi (1916) 33 I C. 520, had held that as regards the damages for the judgment-debtor's alleged negligence in having allowed the decreed house to be burnt down, it could not be a matter to be dealt with in execution of the decree. A reference to the judgment reported in Beecharam Paul v. Bhagwan Chunder Ghose (1892) 5 A.L.L.R. 52 on which the Division Bench purports to rely does not deal with the question which had arisen before the Court in Ramu Shettithi v. Maniappa Shettithi.

6. On the other hand, in Dhanarajagarji v. Rajah Panuganti Parthasarathy Rayanim Varu and Ors. (1933) 38 L.W. 7 4 : A.I.R. 1933 Mad. 825 another Division Bench consisting of Venkatasubba Rao and Reilly JJ had occasion to deal with this question. In that case, an application was filed for compensation for loss sustained by the plaintiff on account of the wrongful conduct of the defendant-judgment-debtor in having fraudulently and dishonestly let into possession a number of tenants, on whom, according to plaintiff, occupancy rights were unlawfully conferred. Considering the question whether the lower Court was justified in entertaining the application at all and dealing with the contention of the counsel that when a decree awards a person certain property, he is entitled to get it in the state in which it was when the decree was passed and whether when the property was delivered, it continued to be in the same state or in the meantime underwent deterioration is a question to be determined in execution, the Bench referred to, with approval the following passage in Harishridhar Prabhu v. Shakharam Padmanna Magdaum : AIR1923Bom391 and stated that that passage contained the correct statement of the law:

But we think that the question with regard to the waste committed by the judgment debtor after decree was a question between the parties relating to the execution, discharge or satisfaction of the decree, and must be determined by the Court executing the decree, and not by a separate suit. The appellant is entitled under the decree to the property of which possession was directed to be given to him. If the property has depreciated in value or been damaged since the decree, owing to the wilful action of the defendant, it is a question in execution whether the defendants are liable to make good the loss.

After referring to Bai Lalbu v. Mohanlal : AIR1925Bom385 which followed the decision in Harishridhar Prabhu v. Shakharam Padmanna Magdum : AIR1923Bom391 the Division Bench in Dhanarajagar ji v. Rajah Panuganti Parthasarathy Rayanim Varu and Ors. (1933) 38 L.W. 714 : A.I.R. 1933 Mad 825 held thus:

The question is whether a successful party can be said to get possession of what has been directed to be given to him by the decree, if the property, while in the opponent's possession, suffered deterioration by damage subsequent to the decree; and whether a claim to compensation is well-founded or not is a matter that should be considered in execution under Section 47, Civil Procedure Code. A different view was no doubt taken in Rama Shettithi v. Maniappa Shettithi (1916) 33 I.C. 520 : A.I.R. 1917 Mad 79 : (1) The point was there disposed of in a brief sentence, and no reasons were given in support of the view taken The learned Judges purported to rely upon Beecharam Paul v. Bhagwan Chunder Ghose I.L.R. (1892) C.L.R. 522 which on examination does not support their conclusion. We therefore think that both in principle and on authority the plaintiffs' contention must be upheld.

An application under Section 47 of the Code of Civil Procedure, is therefore maintainable even in respect of damages sustained by a decree-holder with reference to property in respect of which he had obtained a decree, but which continues to remain in the possession of the judgment-debtor.

7. The next question that arises for consideration is whether this principle is confined only to cases where there is a decree for recovery of possession of the immovable property passed by a civil Court but is applicable to cases of orders of eviction passed by the authorities constituted under the Tamil Nadu Buildings (Lease and Rent Control) Act XVIII of 1960 as amended by Act XXIII of 1973. For the purpose of executing orders of eviction, provision has been made under the Tamil Nadu Buildings, (Lease and Rent Control) Act. The question of the applicability of Section 47 of the Code of Civil Procedure, with reference to execution proceedings under the Rent Control Act has been considered in several decisions of our Court. In K. P S. Thangaswamy Chettiyar v. A. Bapoo Shahib : (1949)2MLJ699 Horwill and Balakrishna Ayyar, JJ, had occasion to consider the applicability of Section 144 of the Code of Civil Procedure, with reference to the proceedings under the Rent Control Act. Section 9 of the Madras Act XV of 1946 as it then stood, provided for execution of eviction orders passed under the Act. Dealing with the contention that Section 144 of the Civil Procedure Code, does not apply to proceedings under Madras Act XV of 1946, the Division Bench stated that it must be held that once the execution proceedings under Madras Act XV of 1946 are committed to the care of ordinary Courts, the provisions of Civil Procedure Code, relating to the subject would apply mutantis mutandis and so far as the machinery set up by that Act and provisions thereof permit.

An application for restitution was held to be one for execution and therefore it was competent for the Rent Controller to entertain an application for restitution and that no separate suit for restitution would lie. In S. A Seshadri Ayyangar v. A. Narayana Nair : AIR1951Mad640 another Division Bench consisting of Rajamannar C.J. and Viswanatha Sastri, J., while dealing with an objection as regards the maintainability of the appeal to the High Court, held, that in executing an order for eviction under the provisions of Madras Act XV of 1946, the Court was functioning as an ordinary civil Court and doing the ordinary business of an executing Court with regard to whose procedure, including those providing for a right of appeal would apply. It was further held that the dismissal of the execution petition of the landlord attracted to itself the provisions of Sections 2(2) and 47 of the Civil Procedure Code with the consequential right of appeal given by Section 96, Civil Procedure Code In S.M.A. Abdul Patcha and Ors. v. Mohammad Jabbar and Ors. : (1956)2MLJ475 Govinda Menon, J., had occasion to consider an objection with reference to the execution of an order of eviction against the legal representative.

8. The objection that was raised was that the provisions of the Act, as they stood, at the time when the order was nude, did not make the provisions of Order 22, Civil Procedure Code, applicable to orders of eviction. The scope of Section 9 of the Rent Control Act, 1949 was considered by the learned Judge and it was held that Section 9 of the Madras Buildings (House 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 and this means that in the execution of such an order, all the provisions of Section 47 and Order 21 are attracted. In V Ramaswami Iyer v. K. Ramakrishnayya : (1969)2MLJ272 Ramaprasada Rao, J. (at he then was), considered the scope of Section 18 of the Madras Buildings (Lease and Rent Control) Act XVIII of 1960. Dealing with the question of the execution of orders passed by the Rent Controller, the learned Judge observed at page 274 thus:

This leads on to the question as to how and in what manner the order for eviction passed by the Rent Controller could be executed. In fact, this point involves a consideration of the second point urged by the learned Counsel for the petitioner. It is conceded that the execution of the order of eviction passed by the Rent Controller was sought by the respondent under Section 8 of the Madras Act XVIII of 1960. While dealing with the execution of orders this section provides that every order passed by the Rent Controller (it is not necessary to set out other details in this section for the purpose of this case) shall be executed by the City Civil Court in the City of Madras as if it were a decree passed by the said Court. By such a fiction the order passed by the Rent Controller is converted into a decree of a civil. Court and this notion conversion by the operational of the fiction makes it a decree of a civil Court.... In fact, the effect, content and real purpose of Section 18 of Madras Act XVIII of 1960 is to clothe the City Civil Court with the jurisdiction to execute the order of a Tribunal constituted under Act XVIII of 1960 or a Rent Controller for the matter of that as if it were its own decree, meaning thereby a decree of a civil Court.

The question of the applicability of the provisions of Section 144 of the Code of Civil Procedure, to eviction proceedings under the Madras Buildings (Lease and Rent Control) Act XVIII of 1960 came up for consideration again before Ramanujam, J. in Mohammed Hussain v. A.K.M. Pitchati : (1970)2MLJ663 . The learned Judge held thus:

Since the eviction order is treated as a decree of Court and taken to a civil Court for execution as per Section 18, such proceedings will be governed by the provisions of the Code of Civil Procedure, relating to execution of decrees so long as the provisions of the Rent Control Act did not modify or restrict the power of the civil Court under the Code. It is well-established that an application for restitution is treated as an application for execution. Unlike under the Madras Act XXV of 1955, the order of eviction passed under the Rent Control Act has been specifically made executable only in a civil Court and there is no provision in the Madras Act (XVIII of 1960) itself curtailing or modifying its powers under the Code in matters of execution. Therefore, it has to be held that the lower Court, (i. e. the executing Court) had the power to order restitution under its inherent powers and direct redelivery under Section 144 of the Code of Civil Procedure.

The decisions referred to above have all been rendered with reference to Section 9 of the Tamil Nadu Act XV of 1947 or Act XXV of 1949 and Section 18 of Tamil Nadu Act XVIII of 1960.

9. By Tamil Nadu Buildings (Lease and Rent Control) Amending Act XXIII of 1973 for Section 18 of the principal Act, the following section was substituted:

18. Execution of Order -.(1) Every order made under Sections 10,14, 15, 16 and 17 and every order passed on appeal under Section 23 or on revision under Section 25 shall be executed by the Controller, as if such order is an order of a civil Court and for this purpose, the Controller shall have all the powers of a civil Court. (2) An order passed in execution under Sub-section (1) shall not be subject to any appeal or revision.

The change that has been brought about by this amending Act is to vest the powers of execution in the Controller and in the discharge of duties as an executing Court, the Rent Controller shall have all the powers of a civil Court. Even after amendment, Section 18(1) provides that the Controller shall execute the order as if such an order is an order of a civil Court and the Controller shall also have all the powers of civil Court. The entrustment of the powers of execution to the Rent Controller and the conferment of all the powers of civil Court on him with reference to such execution would take in all the provisions of Order 21 of the Code of Civil Procedure, as well as Section 47, Civil Procedure Code. Though it has been held that Section 47, Civil Procedure Code, would apply in relation to the execution proceeding in respect of orders of eviction under Section 9 of the Tamil Nadu Act XV of 1947 and XXIX of 1949 and Section 18 of Act XVIII of 1960, the same would be the position under Section 18 as amended by Act XXIII of 1973. Therefore, the contention of the learned Counsel for the petitioner that the application under Section 47, Civil Procedure Code, is not maintainable is not acceptable. In my view, therefore the objection of the petitioner was rightly overruled by the lower Court. The Civil Revision Petition therefore fails and is dismissed but there will, however, be no order as to costs.


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