Augustin Mary vs Gnanaprakasam

Rengasamy, J.—This revision is against the order of the learned I Additional District Munsif, Coimbatore, refusing to dismiss the E.P. No.

363 of 1995 filed for taking delivery of possession of the property. The suit O.S. No. 1788 of 1981 on the file of the District Munsif, Coimbatore,

was filed by the respondent herein against the tenant for recovery of possession of the site after the demolition of the superstructure and the trial

court as well as the appellate court namely, the Subordinate Judge, Coimbatore, granted the decree for possession, as prayed for by the plaintiff.

Therefore, the decree holder filed the E.P. No. 363 of 1995 for taking delivery of possession of the suit property. The revision petitioner herein

filed the E. Act to dismiss the E.P. on the ground that the decree is not in conformity with Sections 3 and 4 of the Tamil Nadu City Tenants

Protection Act, hereinafter to be referred to as Act, and therefore the decree is a nullity and cannot be executed. As the learned District Munsif

rejected this petition, the aggrieved judgment-debtor has come forward with this revision.

The learned Counsel for the revision petitioner contended that the suit was filed against the revision petitioner herein admitting that she was the

tenant of the site that the superstructure put up by the tenant also has been admitted in the plaint and under these circumstances Section 3 of the

Act makes it mandatory to pay compensation to the tenant or her successor in interest, who is in occupation of the site, after fixing the value as

contemplated u/s 4(1) of the Act, that further the court is bound to give three months time u/s 4(4) for payment of the compensation amount to the

tenant or her successor in interest but in this case as the decree has been passed not in conformity with these mandatory provisions, the same is

illegal and the decree cannot be executed. The learned Counsel referring to the decision in V.K.A. Ranganatha Konar Vs. The Tiruchirappalli

Municipal Council, by its Commissioner and Another, , would contend that when the decree is not in conformity with Section 4(4) of the Act, it is

a defective decree. In the case cited by him, though the court fixed the value of superstructure payable to the tenant the court did not fix a time of

three months as contemplated u/s 4(4) of the Act for payment by the landlord to the tenant and in that connection the Supreme Court has observed

that even though the time is not fixed for payment as contemplated u/s 4(4) of the Act, the defective decree would not deprive the tenant of the

benefit intended to be conferred on him under the above provision and the direction under the provision namely Section 4(4) of the Act is

enforceable against the landlord. The learned Counsel further contended that even though the trial court, the Additional District Munsif Court, as

well as the appellate court, the Subordinate Judge, Coimbatore have granted the decree for possession without fixing the value-of the

superstructure, the executing court can ignore the decree in view of the nullity of the decree for want of compliance of the mandatory provisions of

the Act and the lower court ought to have dismissed the execution petition filed by the landlord. The learned Counsel relies upon the Full Bench

decision of this Court in Mohan Ram and Others Vs. T.L. Sundararamier and Others, , wherein this Court has held that in exceptional cases, the

execution court can refuse to execute the decree. The Full Bench in that case observed that when alienation of certain property is prohibited on

grounds of public policy, either under the general law or by statute, the executing court can refuse to execute the decree which directed such a sale.

In that case, the property, a Devadayam land, granted for performing certain services in Meenakshi Sundareswarar Temple, was in the possession

of one Kuppuswamy Iyer, who mortgaged this property to a finance company and for the failure of the mortgagor to redeem the mortgage,

mortgage decree was passed for the sale of the property. In execution of the decree the property was brought for sale and the Full Bench

observed that the property was endowed for the temple services and therefore this inalienable property could not be transferred to anyone and

such alienation is contrary to the public policy and therefore void. The Full Bench has further observed that when the alienation itself is void, the

executing court is competent to take note of it and refuse to execute the decree for sale. No doubt, the dictum of the Full Bench of this Court

cannot be disputed. But that was a case in which the validity of the alienation was not considered during the trial stage because the person, who

was in enjoyment, was not interested to preserve the property, which was endowed for doing services to Sri Meenakshi Sundareswarar Temple.

Therefore, as the validity of the alienation was not considered whereas the alienation itself was found void, the Full Bench has observed that even

the executing court can go into the question. But in this case, the point raised by the revision petitioner in his petition was already raised before the

trial court as well as the appellate court and both courts have negatived this claim of the tenant. In this case, though eviction suit was filed against

the revision petitioner tenant, the tenant was not in actual physical possession of property and somebody was in possession. Therefore, the

respondent herein, who was the plaintiff, contended that the tenant was not entitled to the benefits of the Act. A specific issue namely issue No. 3

was framed by the trial court as follows:

Whether the defendant is entitled to the benefits of Section 3 of the Tamil Nadu City Tenants Protection Act?

The trial court, even though has not specifically discussed the object of Section 3 of the Act, has found in the concluding paragraph 5 that the

plaintiff landlord is entitled to have the superstructure demolished and get delivery possession of the land. Similar issue has been framed by the

appellate court also to the effect ""whether the defendant-appellant was entitled to the benefits of Section 3 of the Act."" In paragraph 11 of the

appellate court judgment, it is specifically held that the appellant was not entitled to claim compensation in respect of the B Schedule

superstructure. Now the only contention raised by the revision petitioner is that the lower court ought to have fixed the compensation for the

superstructure put up by the tenant and three months time should have been given for payment of this amount u/s 4(4) of the Act and as this was

not done, the decree is a nullity. But the trial court as well as the appellate court have framed specific issue on this point and they have found that

the tenant was not entitled to claim compensation for the superstructure and have decreed the suit for recovery of possession after the demolition

of the superstructure. This view has been taken by the said courts for the reason that the tenant was not in actual possession of the property. When

such a finding has been given, even if it is erroneous the only remedy for the revision petitioner herein is to file second appeal against the findings of

the lower appellate court and without doing that the revision petitioner cannot agitate before the executing court to give a finding against the

conclusion already arrived at by the trial court and the appellate court. The Supreme Court in K.S. Santhalingam Vs. Meenakshi Ammal and

Another, , observes,

A court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its

tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in

appeal or revision, a decree even if it be erroneous.-is still binding between the parties.

This dictum of the Supreme Court is squarely applicable for this case. When the trial court as well as the appellate court have gone into the

question whether the defendant is entitled to claim compensation and have found that she is not entitled to, now the executing court cannot reverse

that finding and hold that the defendant is entitled to claim compensation and the same ought to have been directed to be paid within 3 months from

the date of the decree. As mentioned by the Supreme Court even if the findings of the trial court and the appellate court are erroneous, still it is

binding between the parties unless the same is set aside by an appropriate proceedings in the appeal and the executing court cannot go behind the

decree between the same parties. Therefore, the lower court is right in rejecting the petition filed by the petitioner to dismiss the execution

proceedings.

In the result, the revision is dismissed. No costs.