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N. Ramanujam Naidu Vs. C. Panchanatha Mudaliar and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Limitation
CourtChennai High Court
Decided On
Reported in(1980)1MLJ232
AppellantN. Ramanujam Naidu
RespondentC. Panchanatha Mudaliar and anr.
Cases ReferredSubramania Pillai v. Rajakanni Nadar
Excerpt:
- .....herein and the said muthu pillai on the ground of wilful default in payment of rent. the learned rent controller ordered eviction finding wilful default in payment of the rent. the petitioner and the deceased muthu pillai filed c.m.a. no. 22 of 1975 against the order of eviction. the appeal was dismissed on 31st july. 1976. there is no evidence to show when c.r.p. no. 2197 of 1976 was filed against the order in the appeal. at the cause title showed the petitioner herein and the said muthu pillai as petitioners. during the pendency of the civil revision petition in this court, muthu pillai died on 5th september, 1976. but his legal representatives were not brought on record and the civil revision petition was dismissed on 15th december, 1978, without noting that one of the petitioners.....
Judgment:
ORDER

V. Ramaswami, J.

1. The first respondent in the landlord of certain properties. He leased out the same in favour of a firm of partnership of which the petitioner was one of the two partners and the other was one Muthu Pillai. The landlord filed R.C.O.P, No. 90 of 1974 for eviction against both the petitioner herein and the said Muthu Pillai on the ground of wilful default in payment of rent. The learned Rent Controller ordered eviction finding wilful default in payment of the rent. The petitioner and the deceased Muthu Pillai filed C.M.A. No. 22 of 1975 against the order of eviction. The appeal was dismissed on 31st July. 1976. There is no evidence to show when C.R.P. No. 2197 of 1976 was filed against the order in the appeal. At the cause title showed the petitioner herein and the said Muthu Pillai as petitioners. During the pendency of the Civil Revision Petition in this Court, Muthu Pillai died on 5th September, 1976. But his legal representatives were not brought on record and the Civil Revision Petition was dismissed on 15th December, 1978, without noting that one of the petitioners is already dead. The landlord-decree-holder filed E.P.No. 242 of 1979 on 16th April, 1979, against both the petitioners herein and the said Muthu Pillai for evicting the tenants. The petitioner filed E.A. No. 183 of 1979 for staying the execution proceedings. In this petition, the petitioners shown were, the revision petitioner herein and the deceased Muthu Pillai thereby showing that the petitioner himself was either not aware of the death of Muthu Pillai or even if he was aware he has deliberately suppressed the death. This application was ordered by the Rent Controller on 25th April, 1979, granting two months time for vacating. It expires on 24th April, 1979. The petitioner herein filed another application in E.A. No. 215 of 1979 contending that the execution petition was not maintainable as Muthu Pillai had died and the evicting order itself was not executable. But even in this application, he did not produce the death extract. Later, he filed E.A. No. 216 of 1979, on 28th June, 1979 for receiving the death certificate as additional evidence, in the execution proceedings. The death certificate produced by the petitioner herein showed that Muthu Pillai, his partner died on 5th September, 1976 itself. The landlord/first respondent herein filed a counter to E.A. No 215 of 1979 contending that it was not necessary for him and he is not bound to bring on record the legal representatives of Muthu Pillai. When the death extract was produced by the petitioner, by order, dated 30th June 1979, the learned District Munsif held that it as seen from the extract produced by the tenant Muthu Pillai died on 5th September, 1976, and that, therefore, the legal representatives will have to be brought on record. When this order was pronounced, the first respondent/landlord filed an application for bringing the legal representatives on record, on 6th July, 3979. It is against the order, dated 30th June, 1979. directing the landlord to implead the legal representatives of the deceased Muthu Pillai that this revision petition has been filed.

2. The contention of the learned Counsel for the petitioner is that under Rule 25 of the Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974, an application for bringing on record the legal representatives of a deceased person shall be filed within one month from the date of the death of the person concerned or the date of having knowledge of the death of person concerned and that the Rent Controller has no power to excuse the delay in filing an application to being the legal representatives on record. He also contended that Rule 25 of the Rules is applicable to a case where a party to the Rent Control proceedings dies when the petition under the Act was pending disposal before the Rent Controller as also to a case where it has reached the stage of execution If the death had occurred during the pendency of the proceedings before the Rent. Controller and the legal representatives had not been brought on record, the order for eviction or any order made will become not executable. The learned Counsel for the first respondent on the other hand contended that Rule 25 is not applicable to proceedings in execution, that on the facts of this case since the death having been subsequent to the order of eviction made by the Rent Controller, though during the pendency of a revision filed by the tenant himself, the decree cannot cease to be executable, and that the legal representatives if at all will have to be brought on record only in execution proceedings. He also contended that Rule 25 is not applicable to execution of decree made by the Rent Controller and that in execution proceedings, the provisions of the Code of Civil Procedure are applicable and therefore, the legal representatives could be brought on record. He also contended that the first respondent was not aware of the death of Muthu Pillai till the death extract was filed on 28th June, 1979 and on the facts and in the circumstances of this case, the application filed by him on 6th July, 1979, for bringing on record the legal representatives is in time even if Rule 25 is to be applied.

3. On the question of applicability of Rule 25, the matter is not res integra. Prior to the present rules of 1974, the Tamil Nadu Buildings (Lease and Rent Control) Rules, 1961, contained Rule 32 relating to bringing on record the legal representatives and that Rule is in pari materia with Rule 25 of the Ruls of 1974. A Division Bench of this Court held in the decision reported in Snbramania Pillai v. Rajakanni Nadar : AIR1971Mad310 that Rule 32 is applicable only to proceedings pending before the Rent Controller and it is not applicable to execution proceedings.

4. The learned Counsel for the petitioner tried to distinguish this decision by contending that this could not be applied after the amendment of Section 18 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 by Act XXIII of 1973. The provisions of Section 18 as it stood prior to the amendment and subsequent to the amendment may be extracted.

Section 18 as it stood prior to the amendment.

18. Every order made under Sections 10 : 12, 13, 14, 15, 16 and 17 and every order passed an appeal under Section 23 or on revision petition under Section 35 shall be executed:

(i) in the City of Madras, by the Madras City Civil Court

(ii) elsewhere-

(a) by the District Munsiff or if there are more than one District Munsiff, by the Principal District Munsiff, having original jurisdiction over the area in which the building is situated; or

(b) if there is no such District Munsiff, by the Subordinate Judge, or if there are more than one Subordinate Judge, by the Principal Subordinate Judge, having original jurisdiction over the area aforesaid; or

(c) If there is no such District Munsif or Subordinate Judge, by the District Judge having jurisdiction; as if it were a decree passed by the said Court or by him:

Provided that an order passed in execution order of this section shall not be subject to an appeal, but shall be subject to revision under Section 25.

Section 18 as it stands after the amendment:

18. Execution of Orders. - (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.

5. It is the contention of the learned Counsel for the petitioner that prior to the amendments, the Rent Controller while executing the order made by him was acting as a civil Court and it is in those circumstances this Court held in Subramania Pillai v. Rajakanni Nadar : AIR1971Mad310 that the old Rule 32 was not applicable to execution proceedings, and that after the amendment, the executing forum now is the Rent Controller and as such Rule 25 would be applicable to the present execution petition filed under the amended Section 18. I am unable to agree with this contention of the learned Counsel. Under the old section, the decree remained as that of the Rent Controller and the Rent Controller executing it shall be deemed to be a civil Court. But under the new provision, the Rent Controller executing it remains a Rent Controller but the decree shall be executed as if it is a decree of the civil Court. If once the eviction order of the Rent Controller shall be deemed to be a decree of the civil Court and is to be executed as if it were an order of the civil Court then the provisions of Order 21, Civil Procedure Code as far as may will be attracted. Rule 25 in terms is not applicable to a death occurring after the decree in execution proceedings as it in terms is applicable only to proceedings pending before the Rent Controller. Though the Rent Controller is now executing the decree, he is not executing an order of the Rent Controller but an order which shall be deemed to be an order of the civil Court which he is executing. In such a proceeding Rule 25 is not applicable. The ratio of the decision in Subramania Pillai v. Rajakanni Nadar : AIR1971Mad310 therefore, still holds good and is applicable. It may also be mentioned that in executing the order of eviction as if it were an order of the civil Court, the Controller shall also have all the powers of the civil Court. In proceedings in execution in civil Courts, the provisions of Section 5 of the Limitation Act is applicable and therefore, an application for excusing delay in filing the petition for bringing on record the legal representative, if there is any delay, could also be maintained.

6. Apart from this Order 23, Rule 4 relating to abatement on the death of a party to a proceeding is not applicable to execution proceedings and as such there will be no abatement on the death of Muthu Pillai and the decree could be executed against the legal representative of the said deceased Muthu Pillai.

7. The learned Counsel for the first respondent contended that he came to know of the death of Muthu Pillai only subsequent to the extract of death produced by the petitioner herein on 28th June, 1979, that he was not aware of the death of Muthu Pillai earlier and that, therefore, the application filed by him on 6th July, 1979 was in time. He also contended that in the oral evidence given by the petitioner when the matter was pending before the Rent Controller, the petitioner had also stated that Muthu Pillai had ceased to be a partner and that he was no longer interested in the properties which were leased out to the petitioner. It was also pointed out by the learned Counsel for the first respondent that though Muthu Pillai is stated to have died on 5th September, 1976 itself, no application to bring the legal representative on record was filed by the petitioner in the Civil Revision Petition and the first respondent was not aware of the date of the death of Muthu Pillai. But these are all circumstances which will have to be considered in the application filed to bring the legal representatives on record. Suffice it to say that neither there is any abatement of the decree, nor Rule 25 is applicable to the execution proceeding and the procedure applicable for normal execution of civil Courts' decrees has to be applied for executing the decrees of the Rent Controller as well. For the foregoing reasons, the Civil Revision Petition fails and is dismissed. The first respondent will be entitled to his costs. Counsel's fee Rs. 230/.


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