K. Karuppiah Chettiar and 3 others vs R. Renuka Devi and 11 others

The petitioners are the respondents 3,4,13 and 14 in E.A.No.479 of 1998 in E.P.No.51 of 1998 in R.C.O.P.NO.54 of 1981 on the file of the

District Munsif Court, Periyakulam. This civil revision petition has been filed as against the order dated 4.1.2001 passed in E.A.No.479 of 1998

by the learned District Munsif Court, Periyakulam rejecting the petitioners application u/s 47 of C.P.C. challenging the executability of the decree

passed in R.C.O.P.No.54 of 1981.

The 1st respondent in the civil revision petition filed H.C.O.P.No.54 of 1981 against the 1st petitioner in the revision petition and the deceased

father of the petitioners 4,5 and 6 for eviction u/s 14(1)(a) and 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. An ex

parte order of eviction was passed against the respondents 1 and 3 in R.C.O.P.No.10.1.84. On the same day, an order of eviction was also

passed against the 2nd respondent in R.C.O.P. on merits. Aggrieved by the ex parte order of eviction, the respondent 1 and 2 in the R.C.O.P.

filed R.C.A.No.8 of 1984 which was dismissed. As against the said order, Civil Revision Petition No.2000 of 1986 was filed. Simultaneously, the

2nd respondent in R.C.O.P. also filed R.C.A as against the order of eviction on merits which was dismissed. Aggrieved by the same, the 2nd

respondent in R.C.O.P. also filed C.R.P.No.3568 of 1984. Both these revision petition came to be disposed of by a common order of this Court

on 24.4.87. While this Court allowing the C.R.P.No.2000 of 1986 filed by the respondents 1 and 3 in R.C.O.P., remanded the matter for fresh

consideration on merits. However, the order of eviction passed against the 2nd respondent in R.C.O.P was confirmed by this Court. Aggrieved by

the order in C.R.P.No.3568 of 1984, the 2nd respondent in R.C.O.P. filed SLP before the Supreme Court and the same was also dismissed.

In the meantime, the ex parte order of eviction passed against the respondents 1 and 3 in R.C.O.P was set aside by the learned Rent Controller

in I.A.No.62 of 1987 on 11.11.87. After contest, the R.C.O.P. itself was allowed as against the respondents 1 and 3 in the R.C.O.P and an order

of eviction was passed which went up to the Supreme Court in S.L.P.No.14012 of 1997 wherein the Supreme Court confirmed the order of

eviction against the respondents 1 and 3 also.

In view of the finality reached with regard to orders of eviction against the respondents 1, 2 and 3, the petitioners in R.C.O.P. filed E.P.No.51

of 1998 for execution of the decree of eviction dated 10.1.84 and 31.10.94. Pending the said execution petition, the petitioners in the civil revision

petition filed E.A.No.479 of 1998 u/s 47 of CPC objecting to the execution of the decree dated 31.10.94 on the ground that the decree against

the 2nd respondent who was no more on the date when the decree was passed on 31.10.94 as null and void. The said E.A. was dismissed by the

executing court and allowed the execution proceedings by order dated 4.1.2001. It is against the said order, the present civil revision petition has

been filed.

The learned counsel for the petitioners would contend that the decree passed on 31.10.94 against the 2nd respondent in the R.C.O.P. who was

no more on the date of decree since he had passed away on 6.8.92 is a nullity and cannot be executed. The learned counsel would further contend

that when the order of eviction was set aside by the learned Rent Controller in I.A.No.62 of 1987 on 11.11.87, it must be taken that the entire

order of eviction including the order of eviction as against the 2nd respondent in R.C.O.P. is set aside. Therefore, the order of eviction as against

the 2nd respondent passed on 10.1.84 should be also deemed to be set aside, in that event, the only order of eviction which could be executed is

the order of eviction dated 31.10.94. If that be the position, on the date when the said order of eviction was passed, the 2nd respondent was not

alive and therefore the said order of evictipn cannot be executed as against the 2nd respondent For the said submission, the learned counsel would

rely upon the Full Bench and. Division Bench judgments of this Court reported in Krishnama Chariar v. Mangammal and others, ILR 26 Mad.91,

Kunjammal Vs. Krishna Chettiar by agent, Velayudham Pillai, and Corporation Bank v. M/s E.W.Stevensors, No.22, Jawaharlal Nehru Road,

Calcutta and others, 1993 MLJ 446. Based upon the, above Judgments, the learned counsel would contend that when a portion of the decree

there cannot be two final decrees in a suit one by the Court of first instance and other by the Court of Appeal. The last one of the decree has to be

taken for the purpose of execution, in that event, the last decree to be executed is taken into consideration in the present case, is the decree dated

31.10.94 in which event the said decree cannot be executed as against the 2nd respondent who was no more on the date of passing of the decree.

The learned counsel would also rely upon Article 138 in this connection for the purpose of Limitation and if a petition for execution of decree made

beyond a period of two years, notice should be given to the aggrieved persons. In this case, no such notice has been issued to the civil revision

petitioners and therefore the order of the learned District Munsif, Periyakulam dated 4.1.2001 is liable to be set aside.

On the other hand Mr.K. Alagiriswamy, learned senior counsel appearing for the respondents would contend that it is not in dispute that an

order of eviction as against the 2nd respondent in R.C.O.P. was passed as early as on 10.1.84. The said order has become final inasmuch as the

same was challenged both before the learned Appellate Authority as well as before this Hon''ble Court in C.R.P.No.3568 of 1984. The order of

eviction was confirmed by the appellate court as well as by this Court in the revision. Aggrieved by the said order, SLP was also preferred before

the Supreme Court which was also dismissed and therefore the said order of eviction has become final. Since the order of eviction was challenged

by the respondents 1 and 3 in the R.C.O.P by way of appeal and the, appeal which was confirmed and the said order.of eviction was further

challenged in revision petition before this Court in C.R.P.No.2000 of 1986 which was allowed and remanded for fresh consideration. Thereafter,

the learned Rent Controller in I.A.No.62 of 1987 set aside the ex parte order of eviction on 11.11.87 and thereafter he proceeded with the main

R.C.O.P. on merits Finally, the order of eviction was passed on 31.10.94. Of course, the learned Rent Controller while passing the order has

directed the order of eviction as against the respondents 1,2 as well as respondent 3. Since the order of eviction which was passed earlier on

10.1.84 has become final, the mere fact that 2nd respondent has also been shorn in the Order of eviction dated 31.10.94 would not by itself

disentitle the 2nd respondent in R.C.O.P. to have the benefit of the order of eviction passed on 10.1.84. The inclusion of the 2nd respondent in the

Order of eviction dated 31.10.94 is by mistake. Taking advantage on the same only the civil revision petitioners opposed the execution

proceedings on the ground that the decree dated 31.10.94 as against the 2nd respondent who was not alive on the said date is null and void, when

once both the orders of eviction have been confirmed by this Hoh''ble Court as well as by the Supreme Court, the petitioners are entitled to file an

application for execution of the decree. The learned Senior Counsel would contend that the judgments relied upon by the learned counsel for the

petitioners are with reference to the decrees passed on the first instance as well as the appellate stage and for the purpose of limitation, the latest

decree should be taken into consideration. In the given case, both the decrees were passed by the learned Rent Controller and in view of the

pendency or the litigation against the respondents 1 and 3, the order of execution as against the 2nd respondent was not pursued and after the

entire matter reached finality on 31.10.94 the present execution applications have not been filed. Therefore, the learned senior counsel submitted

that the averments made by the learned counsel for the petitioners based upon the judgments are to applicable to the facts of this case. Hence, the

learned senior counsel submitted that the civil revision has ho merit and is liable to be rejected.

It is not in dispute that the order of eviction as against the 2nd respondent in the R.C.O.P. dated 10.1.84 has been confirmed by this Court as

well as by the Supreme Court. When the said order of eviction was confirmed by this Court as well as by the Supreme Court, the 2nd respondent

was alive. Therefore, the orders of eviction dated 10.1.84 as against the 2nd respondent who was alive on the date of those orders are valid in the

eye of law. However, the. same could not be executed in view of the fact that the orders of eviction passed against the respondents 1 and 3 dated

10.1.84 were under challenge the finally the said proceedings were settled against the respondents 1 and 3 in R.C.O.P. only during 1997 when the

SLP No.14012 of 1997 filed by the respondents 1 and3 was dismissed, From the said date, the present execution petition filed during the year

1980 is well within a period of two years from the date of, its finality. Therefore, 1 do not find any justification in the submission of the learned

counsel for the petitioners that the execution application, is without issuing notice to the affected parties as contemplated under Order 21, Rule 22

of CPC cannot be sustained. Further, when the orders of eviction have been already confirmed by the Supreme Court as against all the

respondents, it cannot be contended that the order of eviction dated 31.10.94 was passed as against the 2nd respondent who was no more is also

not acceptable. In''so''far as the 2nd respondent is concerned, the order of eviction dated 10.1.84 and as far as respondents 1 and 3 are

concerned the orders of eviction dated 31.10.94 are to be alone taken into consideration.

In that View of the matter, I. do not find any merit in all the contentions of the learned counsel for the petitioners. Accordingly, the civil revision

petition is dismissed. No costs. Consequently, C.M.P.No.3485 of 2001 is also dismissed.