Asarab Ali and six others vs V. Uthirapathi

Legal heirs of the landlord in R.C.O.P.No.17 of 1982, on the file of Rent Controller (District Munsif), Kumbakonam, are the revision

petitioners.

Eviction order was obtained through Rent Control Court and E.P.No.142 of 1986 was filed for taking possession.

Pending execution, the decree - holder died on 27.2.1993. But the impleading petition was filed only on 25.4.1994. A contention was raised on

behalf of the tenant that the petitioners herein cannot be impleaded, and they ought to have come on record within two months from the date of

death of the decree-holder. For the said purpose, Rule 32 of the Tamil Nadu Buildings (Lease and Rent Control) Rules was invoked by the tenant.

Rent Controller accepted the contention and rejected the claim of the decree holders. The impleading petition filed by the petitioners herein was

dismissed by the Executing Court, and the same is challenged in his revision under Art. 227 of the Constitution of India.

The order of the court below is perverse and cannot be supported for a moment.

If only the court below had taken into consideration Sec. 18 of the Rent Control Act, this blunder would not have been committed. After trial

when a Rent Control Petition is ordered and eviction is allowed, when Execution Petition is filed, the Executing Court is a Civil Court under Sec.18

of the Act, and it shall have all the powers of a Civil Court. It is not disputed that the decree-holder died after filing the Execution Petition. The rule

relied on by the court below has no application at the execution stage. Rule 32 deals with impleading of legal heirs when a Rent Control petition is

pending. Neither Order 22 of the CPC nor the provisions of the Rent Control Act will apply for impleading legal heirs in execution. There is no

time-limit for the legal heirs to come on record. The only limitation is, whether the decree is in time. For executing a decree, 12 year period is

available to the decree-holder. Court below has not considered the decision reported in Subramania Pillai Vs. Rajakkani Nadar and Another,

where a Division Bench has specifically considered this question. There, their Lordships were considering Section 18, C.P.C. read with Rule 32 of

the Rent Control Rules. Their Lordships said that Rule 32 will apply only during trial stage, and in execution, the same has no application. It was

held thus:-

The fiction enjoined by Section 18 of the Act attracts to the eviction order the entire procedure of the Civil Procedure Code, applicable to

execution of a decree: When a fiction is created statutorily, it must no doubt be limited to its purpose, but, for the purpose for which it was created,

the putative state of affairs should be excluded. In other words, the expression ""as if it were a decree passed by the District Munsif'' would have

the effect of a decree passed by him. On that view Rule 32 of the Madras Buildings (Lease and Rent Control) Rules would have no application to

the execution of an eviction order passed under the Act.

The decision reported in N. Ramanujam Naidu Vs. C. Panchanatha Mudaliar and Another, also supports the case of the petitioner. In that case,

their Lordships held that even if the Executing Court can be considered as a Rent Court, there cannot be any question of abatement in such cases.

Either way, the order of the Executing Court is a result of misunderstanding of law which has caused great injustice to the decree-holder. The

revision petition is allowed. No costs. The Executing Court is directed to restore the execution petition and proceed with the same in accordance

with law. The execution petition has been filed in 1986 and so I direct the Executing Court to implead the petitioners herein additional decree-

holders and finally dispose of the Execution Petition within a month thereafter. The Court below is directed to company with this direction without

fail. C.M.P. No.11452 of 1997 for injunction is dismissed.