Murthy, C and another vs M.R. Gopal Achari and 2 others

Raju, J.—The above revision petition has been filed under ArE-227 of the Constitution of India, challenging the order of the Court below

dated 5.8.1993. made in E.A. No. 27 of 1990 in E.P. No. 2 of 1990 in R.C.O.P. No. 28 of 1982, rejecting E.A. No. 27 of 1990. There is no

controversy and it is unnecessary for me to go into the details of the past history except referring to the fact that the petitioners, the tenants,

suffered an order of eviction and that order of eviction came to be sustained in proceedings pursued by the petitioners thereafter upto the highest

Court in the country, the Supreme Court of India and that an execution petition has been filed thereafter. At that stage, the tenant, the petitioners

before this Court, have Hide an application contending that there is a mistake in the identity and extent of the property ordered to be evicted and

surrendered and the one from which the'' petitioners are sought to be dispossessed and that the petitioners have effected certain improvements in

the year 1980 and the value of such improvements have to be paid before executing the order of eviction by dispossession. The said application

was opposed by the landlord. Even before the Court below the decision in Vedhanayagam v. Janaki Ammal (93 L.W.324) and Mohamed All

Sahib, A.V. v. Naina Mohamed Maracoir (95 L.W. 327) were pressed into service. The Court below, in spite of the same, has come to the

conclusion that the objections raised are pure afterthoughts intended to drag on the proceedings further and to avoid eviction. While coming to

such a conclusion, the Court below has also said that the application filed by the petitioners herein cannot be maintained for the reasons that basis

of claims have their origin to events prior to the eviction petitions but not raised or agitated in those proceedings and hence, the above revision.

Mr. G. Subramaniam, learned Counsel appearing for the petitioners vehemently contended that the view expressed by the Court below that the

application is not maintainable, cannot be sustained and that instead the Court below ought to have gone into the merits of the objections raised

instead of rejecting the application as such, Reliance has once again been made before me to the decision reported in 93 L.W. 324 (supra) to

contend that the view expressed by the Court below that the application under S. 47 of the CPC is not maintainable, is not acceptable. The

learned Counsel further referred to S.18 (1) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 to contend that In as-much as

the Rent Controller, discharging power as executing Court, is conferred with all the powers of a Civil Court, the nature of objections raised would

clearly fail within the scope of S.47 of the CPC and consequently the rejection of the application is not maintainable.

I am afraid I cannot countenance the claim of the learned senior Counsel. The decision reported in 93 L.W. 324 (supra) relied upon, in my

view, has to be confined to the nature of the objections raised at the stage of execution in that particular case. That was a case where the

objections were raised with reference to the damage caused to the property while effecting delivery and such objections could not have been

raised earlier in the eviction proceedings themselves filed under the Act. It is only in that context the Court below, when it made a summary

disposal of the application, this Court disapproved the view expressed by the Court below. So far as the case on hand is concerned, if there is any

misdescription and mistaken identity or difference in extent of the property in respect of which eviction was sought for, it should have been taken

even at the initial stage in the eviction proceedings themselves. Grievance has been raised in a different form earlier but considered and rejected in

the eviction proceedings. Equally so is the claim or objection raised with reference to the entitlement of the petitioners herein for the alleged

improvements said to have been made to the property in the year 1980 and the value thereof. Such an objection also appears to have been raised

in the earlier eviction proceedings but the same were considered and rejected on merits by considering in detail the evidence on record and also

taking into account the withdrawal and dismissal of a suit O.S. No. 1165 of 1981 before the Civil Court filed by the tenants themselves and that

therefore, the same cannot be once over again allowed to be resurrected and urged at this stage. It is not open to the tenant to be either indifferent,

or not to raise a particular point in a particular manner or stake all claims which should otherwise have been taken and at the appropriate stage and

got considered at the stage of eviction proceedings themselves under the Act and after an unsuccessful challenge of the order of eviction up to the

highest forum available, turn round at the stage of execution of the eviction orders and re-agitate state and controversial claims at the stage of

execution under the pretext of making an application, invoking the provisions of S. 47 of the Code of Civil Procedure. The Court below, while

rejecting the application as not maintainable, must be considered to have expressed the said view with reference to the nature of the objections

raised and not as a general rule that no objection could be raised by means of an application under S.47 of the CPC at the appropriate stage. The

reasons assigned in paragraph 5 of the order amply make this position clear. The nature of objection is vitally relevant for considering the issue as

to whether such objections can be gone into at the stage of execution of an order of eviction, which, as already noticed, has been affirmed by the

highest Court of the land. In that view of the matter, I do not see any infirmity in law in the order of the Court below. The application by the

petitioner lacks bona fides and is nothing but sheer abuse of process of Court. The revision, therefore, fails and shall stand dismissed