P. Dharmarajan, Managing Trustee, Ananda Samudhra Gram Brahmana Samudhayam and its members vs Vanajakshy, P. Harikesavan, P. Sabareesh and Saravanan

Aruna Jagadeesan, J.—This Civil Revision Petition is filed against order dated 28.1.2009 passed in EA. No. 23/2008 in EP. No. 52/2005

in RCOP. No. 18/2002 by the learned I Additional District Munsif, Nagercoil.

The petitioner is the Managing Trustee of the Ananda Samudhra Grama Brahmana Samudhayam, Nagercoil. According to the petitioner, the

respondents 1 to 3 are the tenants, who had initiated rent control proceedings against the 4th respondent, who is claimed to be the sub tenant

under them for eviction.

It is the case of the petitioner that the petitioner Samudhayam had granted ground lease to the third parties, who have raised construction on the

land so leased. A lease deed is said to have been executed by the original lessee Hariharan Potri with the petitioner Samudhayam on 25.10.1962

and the said lead did not authorise the lessee to put up any construction. The said Hariharan Potri died in the year 1968 and after his demise, the

lease hold right is said to have devolved on his children, but no separate lease deed had been executed with the petitioner.

It is contended by the petitioner that the original lessee was paying rent at Rs. 225/- p.m, which was later increased to Rs. 333/- and then to Rs.

600/- and it was agreed to pay enhanced rent of Rs. 1500/- p.m. and paid only for the month of December 1994, but they started paying the rent

only at the old rate thereafter. It is stated that the petitioner refused to receive the same and demanded the details of the other tenants for issuance

of suitable notice for termination of lease. It is further contended that the petitioner had issued a notice for termination of lease on 10.3.1998 and

subsequent thereto, the respondents 1 to 3 had attempted to raise construction which had resulted in filing of the suit for permanent injunction in

OS. No. 22/2001.

According to the petitioner, there are more than 12 shops in the suit premises and the respondents 1 to 3 and their father had sublet it to the

third parties. The petitioner would contend that he came to understand that the respondents 1 to 3 had initiated rent control proceedings against the

4th respondent for eviction on the ground of wilful default, committing waste and owners occupation suppressing the fact that they have only lease

hold right. There were exchange of notices between the petitioner and the respondents 1 to 3. The petitioner had filed a suit for recovery of

possession in OS. No. 400/2003 against the respondents 1 to 3 and others. Pending the suit, the respondents 1 to 3 had secured an order of

eviction against the 4th respondent in RCOP. No. 18/2002. In the mean while, the 4th respondent, who is the sub tenant according to the

petitioner, had handed over possession to the petitioner on 12.2.2008 and so the petitioner had filed the impugned petition u/s 47 of CPC for

dismissal of the EP filed by the respondents 1 to 3 as infructuous.

The court below has rejected the prayer sought for by the petitioner on the ground that the right claimed by the petitioner that the respondents 1

to 3 have only lease hold rights could be decided in the suit in OS. No. 400/2003 instituted by the petitioner and he cannot obstruct or resist the

respondents from obtaining possession who have got a valid decree for eviction in RCOP.No.18/2002.

Mr. V. Raghavachari, the learned Counsel for the petitioner would contend that the petitioner Samudhayam had granted lease of ground to

some strangers, who put up construction and the father of the respondents 1 to 3 had obtained assignments of the lease hold rights from those

respective parties along with the building thereon and entered into a lease agreement with the petitioner for six years, which having expired,

termination notice had been issued against the respondents 1 to 3. He would submit that in such circumstances when the 4th respondent in RCOP.

No. 18/2002 vacated and handed over possession to the petitioner, who is the paramount lessor, the executing court ought to have held that the

decree passed in RCOP.No.18/2002 had become inoperative, as nothing survives in the execution petition in EP. No. 52/2005. The learned

Counsel assailed the order of the court below contending that the court below had failed to consider the application filed by the petitioner u/s 47 of

CPC on merits.

Admittedly the suit filed by the petitioner in OS. No. 400/2003 for eviction against the respondents 1 to 3 and others is pending and the

respondents 1 to 3 have claimed benefits under the City Tenants Protection Act in the said suit in OS. No. 400/2003. The 4th respondent is

arrayed only as a tenant and no relief had been sought for against him. The decree for eviction against the 4th respondent has been upheld by this

court. In fact, there was an attempt to implead the petitioner in RCOP. No. 18/2002, but the same had been dismissed. The impleadment was

sought for on the ground that the petitioner is the paramount lessor of the ground, but the same had been rejected by this court.

In order to determine as to whether the parties to a proceeding arising in execution are ""parties"" within the meaning of Section 47 of CPC, the

governing factor is not whether the disputants were parties to the decree, but whether the disputants were parties to the suit in which decree was

passed. Two essential ingredients of Section 47 of CPC are (i) it should be a question relating to the execution, discharge or satisfaction of the

decree and (ii) it had arisen between the parties to the suit in which the decree has been made. The fundamental principle is that in order to be a

party, the plaintiff must have a cause for relief and the defendants must be the persons against whom the cause is sought to be agitated. If no such

claim is made or arises, then the rights of such a third party cannot be decided u/s 47 of CPC. The dispute between two rival claimants would not

fall within the ambit of Section 47 of CPC and the only remedy open to the party concerned is to file a suit.

The eviction proceedings initiated by the respondents 1 to 3 would come into existence from the date of the institution of such proceedings and

continues to survive till the satisfaction of the decree. Thus where after the decree holder had obtained a decree for eviction, the judgement

debtor/4th respondent had handed over possession to a third party namely the petitioner herein before the decree could be executed, such a third

party cannot assert by filing an objection u/s 47 of CPC that the decree is not binding on him or that the decree has become inexecutable. The

contention of the learned Counsel for the petitioner that the decree had become inexecutable by the executing court on the ground that the petition

premises had been delivered to the petitioner and therefore, the decree holder lost his rights to execute the decree as the property was no longer

available for execution is untenable and unacceptable.

The judgement relied on by the learned Counsel for the petitioner rendered in the case of N.S.S. Narayana Sarma and Others Vs. Goldstone

Exports (P) Ltd. and Others, cannot be applied to the facts of this case, as the facts of the present case are distinguishable.

The learned Counsel for the petitioner relied upon another decision of the Honourable Supreme Court rendered in the case of Bharat Sales

Ltd. and Another Vs. Smt. Lakshmi Devi and Others, , pointing out to the observations made by the Honourable Supreme Court that when

delivery of possession to the paramount lessor instead of landlord is made, the landlord loses his rights to retain possession and the paramount

lessor acquires the right to obtain possession of the leased property and therefore, in such a situation the court can direct the tenant of the landlord

to hand over possession to the paramount lessor instead of landlord.

In the above said case, the order terminating lease granted by the paramount lessor i.e. Union of India in favour of the landlord had been

passed and re-entry upon the premises had also been ordered. In such a situation, since the possession of the premises has not been taken over

due to the pendency of the proceedings on facts, in the said case the Honourable Supreme Court observed that the tenant should deliver

possession of the premises to the Union of India. However, it observed that ordinarily in a case where the order of eviction passed by the Rent

Controller is confirmed, then the landlord is entitled to recover possession of the premises from the tenant. But, in the peculiar facts and

circumstances of the said case, the Honourable Supreme Court was of the view that possession should be handed over to the Union of India.

In the present case, the suit filed by the petitioner against the respondents 1 to 3 claiming ownership to the site of the petition premises is

pending and impleadment of the petitioner on the ground that the Samudhayam is the owner of the ground was rejected by the Rent Controller,

which has been upheld by this court and the same had become final. Therefore, the judgement cited supra decided on facts and circumstances of

the particular case cannot be applied to the facts of the present case.

The eviction decree being not assailed by the 4th respondent, he cannot be permitted to abuse the process of law by handing over possession

to a third party, thus altering the decree which has attained finality in all respects. The claim of right to the site and termination of lease said to have

been made by the petitioner is a matter between the petitioner and the respondents 1 to 3 and the executing court cannot enter into an enquiry to

find out as to whether the lease hold rights in favour of the decree holder is still in existence or had been terminated as contended by the petitioner.

The objection raised by the petitioner to the execution of the decree is not as a party to the proceedings in which the decree has been passed

nor as a representative to any of the party but in a different capacity and title is being set up practically on the petitioner and therefore, it is not the

province of the executing court to adjudicate on such a claim. Therefore, I am of the considered view that the refusal of the executing court to go

into the question raised by the petitioner is sustainable and I do not find any illegality or irregularity to interfere with the said finding of the court

below.

In the result, this Civil Revision Petition is dismissed. No costs. Consequently, the connected MP is closed.