A. Ghouse Khan vs The Rent Controller and Others

Venkataswami, J.—This revision petition is preferred under Art.227of the Constitution of India, against an order of Rent Controller

(Principal District Munsif), Coimbatore, in E.P. No. 494 of 1982 in E.A. No. 2427 of 1983, dated 30.4.1987.

The petitioner in this civil revision petition was the fourth respondent in E.A. No. 2427 of 1983. The facts leading to the filing of this revision

petition are the following: ""The second respondent herein preferred R.CO.P. No. 400 of 1966 against one Sulaiman, Raman Nair and Aziz Khan

for evicting them from the suit premises. An order of eviction against those three tenants were passed on 10.1.1967. Against that order of eviction,

an appeal was filed in R.C.A.No. 32 of 1967 which was ultimately dismissed on 22.1.1969. Thereafter, the tenantspreferredC.R.P. No.

274ofl969on the file of this Court which was also ultimately dismissed on 27.4.1970. It appears that Azizkhan viz., the third tenant died on

20.9.1972. Without knowing the death of the said Aziz Khan, E.P. No. 446 of 1975 was filed on 12.6.1974. On 18.11.1976, the legal

representatives of the deceased Aziz Khan including the petitioner herein filed a Memo before the Rent Controller bringing to the notice of the

Court about the death of Aziz Khan. Immediately, the second respondent herein filed E.A.No. 160 of 1977 on 26.2.1977 to bring on record the

petitioner herein and two others as legal representatives of the deceased Aziz Khan. That application was opposed by the legal representatives of

the deceased Aziz han. That application was opposed by the legal representatives on the ground that the landlord was aware of the death of Aziz

Khan long earlier and the application to bring legal representatives on record filed after a period of 30 days from the date of the knowledge of the

death of Aziz Khan cannot be entertained as per Rule 25 of the Tamil Nadu Buildings Lease and Rent Control Rules, 1974. Hewever, the Rent

Controller overruled that objection and allowed the petition. Against that order of the learned Rent Controller bringing on record the legal

representatives of the deceased Aziz Khan, the petitioner herein and two others preferred W.P. No. 2620 of 1977. That writ petition came up

before Ratnavel Pandian, J., as he then was. Before the Learned Judge, it was contended on behalf of the legal representatives inter alia that the

landlord could proceed against the petitioners herein, if he is so advised, by filing an independent application for execution as provided under the

Act. The learned Judge in his elaborate Judgment which is reported in Ghouse Khan v. Rent Controller, Coimbatore (1981) 2 M.L.J. 388 has held

that the order of the Rent Controller cannot be sustained and consequently allowed the Writ Petition with an observation which reads as follows:

It is unnecessary to mention that it is always open to the second respondent-landlord to take separate proceedings against the writ petitioners if he

is so advised, under the provisions of the Act.

In the light of the disposal of the Writ Petition in the above manner, the second respondent herein filed another execution petition on 1.11.1980,

viz., E.P. No. 494of 1982. In this execution petition, he has shown the original two tenants and the legal representatives of the deceased third

tenant, viz., Aziz Khan which include the petitioner herein as well. By way of abundant caution, the second respondent herein also filed E.A.No.

2427 of 1983 with a prayer to condone the delay, if any, in bringing the legal representatives on record. The Legal Representatives of the

deceased Aziz Khan opposed the application contending that in view of the order in W.P. No. 2620 of 1977, the landlord cannot file fresh

execution petition, but has to file fresh R.C.O.P.

The learned Rent Controller overruled that objection and impleaded the petitioner and two others as legal representatives of the deceased Aziz

Khan purporting to condone the delay in bringing the legal representatives on record.

Aggrieved by the order of the learned Rent Controller, the present civil revision petition is filed by the petitioner. Mr. Mohan Ram, learned

Counsel for the petitioner after elaborately narrating the facts submitted that in the including portion of the order in W.P. No. 2620 of 1977, the

learned Judge has directed the landlord to file fresh rent control petition and certainly, there was no permission to file fresh execution petition. He

also submitted that in view of the dismissal of the application to bring the legal representatives on record earlier, it is not open to the landlord to file

another execution petition by simply adding the legal representatives as party respondents along with other, tenants. He also submitted that Rule 25

of the Tamil Nadu Buildings (Lease and Rent Control) Rules prescribes a time limit within which the legal representatives of the deceased party

must be brought on record. Beyond that, the legal representatives cannot be brought on record.

Mr. Varadarajan, contending contra, submitted I that if the argument on behalf of the petitioner in W.P. No. 2620 of 1977 is borne in mind

while 1 appreciating the concluding part of the order in the said writ petition, there cannot be any doubt I that what the learned Judge meant was

that it was I open to the landlord to file fresh execution petition. Even otherwise, according to the ''earned counsel for the second respondent the

order in W.P. No. 2620 of 1977 will apply only to proceedings in E.P. No. 446 of 1975 and it will have no application for E.P. No. 494of 1982

which is well in time. He also submitted that Scc.18 of the Tamil Nadu Buildings (Lease and Rent Control) Act clearly contemplates an application

of Section 50 and > O.21 of the CPC to execution j of orders passed by a Rent Controller. He also submitted that Rule 25 of the Tamil Nadu

Buildings (Lease and Rent Control) Rules relied on by the learned Counsel for the petitioner will not apply to execution proceedings but will apply

only to proceedings before the stage of execution. According to the learned Counsel for the second respondent, it is open to a decree-holder to

file number of execution petitions till the decree is fully executed, provided, the petitioners are in; time. Therefore, the present petition being in time

is independent of the earlier execution petition and, there is no provision in Order 21 of the Code of Civil Procedure, to bring legal representatives

on record in execution proceedings. Under those circumstances the execution petition can straightaway be filed by impleading the legal

representatives of the deceased Judgment debtor, in this case, the tenant. Therefore, the petition filed in the court below is unnecessary, even

without a petition to condone a delay in bringing the legal representatives of the deceased tenant on record, the landlord could have straightaway

filed execution petition by impleading the legal representatives of the deceased tenant as party respondents in the execution petition. In support of

his contentions, he placed reliance on the following Judgments:

(1) (Pakkiri) Muhammad Rowther Vs. Maideen Pichai Sahib, Kanchamalai Pathar v. Shahaji Rajah Sahib 70 M.L.J. 602 : A.I.R 1936 Mad

205(3) Muthia alias Gandhi v. Subbiah Chettiar 99 L.W. 964 Trilogchand Bafna v. Chelliappan 99 L.W. 438 and N. Ramanujam Naidu Vs. C.

Panchanatha Mudaliar and Another, .

I have considered the rival submission and I am of the view that the contentions advanced by Mr. Varadarajan, learned Counsel appearing for

the second respondent are well founded, I shall give my reasons immediately.

In Thirupathi Ayyangar Vs. Yegnammal, , Pandalai, J. while explaining the scope of Section 50 and Order 21, Rule 16 of the CPC has held as

follows:

The CPC does not contemplate any specific application to bring on record the legal representative of the Judgment-debtor though in ordinary

practice such a prayer is usually added in an execution petition... Section 50(1) C.P.C says that where the Judgment-debtor dies before the decree

has been full satisfied, the holder of the decree may apply the Court which passed it to execute the same against the legal representatives of the

deceased.

The learned Judge has referred to number of earlier authorities.

In Kanchamalai Pathar v. Shahaji Rajah Sahib 70 M.L.J. 162 AIR 1936 Mad 205, Varadachari, J. while construing the provisions of Section

50 and Order 21 Rule 22 of the CPC observed that it is open to the decree-holder in execution proceedings to file an application to bring on

record the legal representatives of the deceased Judgment-debtor as respondents. The judgment in Kanchamalai Pathar v. Shahaji Rajah Sahib 70

M.L.J. 602 : A.I.R 1936 Mad. 205is a judgment of a Full Bench consisting of five learned Judges. In N. Ramanujam Naidu Vs. C. Panchanatha

Mudaliar and Another, , V. Ramaswami, J. (as he then was) had taken the view that Rule 25 of the Rent Control Rules will apply only to

proceedings pending before the Rent Controller and the same is not applicable to execution proceedings. According to the learned Judge for

execution proceedings, Section 18 of the Act has to be referred to and this Judgment of V. Ramaswami, J. was referred to and expressly followed

by Shanmukham, J., in Trilogchand Bafna v. Chelliappan 99 L.W. 438 by observing as follows:

It is true that in GhouseKhan v. Rent Controller, Coimbatore (1981) 2 M.L.J. 388RatnaveP Pandian, J., has observed as follows:

Therefore, the Rent Controller ought to have seen that the fiction created by Section 18 of the Act can be extended only for the limited purpose of

exercising the powers vested in a Civil Court while executing the orders of eviction, such as, those provided under Order 21 of the Code but

cannot be extended to matters such as those contained in Order 22 and other provisions of the Code relating to the execution of a decree.

It is interesting to note that the decision of V. Ramaswami, J. in N. Ramanujam Naidu Vs. C. Panchanatha Mudaliar and Another, , was not

brought to the notice of Ratnavel Pandian, J., when the Learned Judge rendered the decision in Ghouse Khan v. Rent Controller, Coimbatore 84

L.W. 568. Be that as it may, I prefer to follow the ratio laid down by V. Ramaswami, J. in N. Ramanujam Naidu Vs. C. Panchanatha Mudaliar

and Another, . Here are my reasons : Order 22, Rule 12 of the C.P.C., provides that nothing in Rules 3,4 and 8 shall apply to proceedings in

execution of a decree or order. As already pointed out by me, after valid decree is passed it can be enforced till it is barred by time, as provided in

law. As long as a decree can be enforced, it is obvious that an application to bring on record the legal representative can be presented within that

period.

(It may be noted that Ghouse Khan v. Rent Controller, Coimbatore 84 L.W. 568 referred to above is the very same case between the parties in

this case.

In Muthia Alias Gandhi v. Subbiah Chettiar 99 L.W. 964 Shanmukham, J., while construing the scopeof Section 50 read with Order 21 of the

CPC held as follows:

Section 50 alone prescribes the procedure to proceed against the legal representatives of the deceased judgment-debtor. It is relevant to notice

that there is no such procedure in Order 21, C.P.C. Strictly, it is not a case of bringing the legal representatives of the judgment-debtor on record,

but an application to execute the decree against the legal representatives of the deceased judgment debtor. Subject to Sub-section (2) of Section

If so, when the execution petition was dismissed, for not taking steps, the Court has ample jurisdiction to restore it as long as the decree is put

in execution before it is barred by time. Unlike a suit getting abated under Order 22, Rule 4(3) the decree retains its force till it is barred by time.

Above all, it is seen from the records that the Court below dismissed the execution petition for default because it was not brought to its notice that

the petition to proceed against the legal representatives has since been filed.

From the extracts given above from various judgments, I have no doubt that the Court below was right in impleading the legal representatives

of the deceased tenant as party respondent in the fresh execution petition though it was not necessary for he Court below to condone the delay by

invoking Section 5 of the Limitation Act. On the scope of concluding portion of the order in W.P. Nos. 2620 of 1977, I am of the view, having

regard to the argument advanced by the petitioner in that case, the learned single Judge should have meant when he mentioned ""separate

proceedings against the writ petitioners"" fresh execution petition. Even otherwise, as per the catena of decisions cited hereinbefore, nothing

prevents the landlord from filing fresh execution petition by adding the legal representatives of the deceased tenant to execute the order of the Rent

Controller.

In the result, the order of the Court below is confirmed, but for different reasons. The civil revision petition is dismissed. However, there will be

no order as to costs.