Trilogchand Bafna vs Chelliappan

Shanmukham, J.—The petitioner is the tenant against whom an order of eviction was passed in R.C.O.P. No. 2344 of 1982 brought by the

landlady Kannammal under S.10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, Act 18 of 1960 hereinafter referred to as

the Act. The tenant took the matter up to the Supreme Court, but was unsuccessful throughout. The landlady passed away on 16th December,

1983. The SLP filed by the tenant against the dismissal of the civil revision petition, namely, C.R.P.No. 4074/83, was after the death of the

landlady and in that Proceeding before the Supreme Court, the respondent herein was shown as the respondent. The respondent filed E.P.No.

667/84 and M.P.No. 493/84 to enforce the said order of eviction. In M.P.No. 493/84 he wanted that he should be impleaded as the legal

representative of the deceased landlady Kannammal. The petitioner-tenant resisted that application on the ground that the respondent is not the

legal representative, nor is he the legal heir of the deceased Kannammal and that the petition rot having been filed within 33 days from the date of

the death of the landlady, it is liable to be dismissed as barred by time. The Rent Controller ordered the said petition. The petitioner''s appeal,

R.C.A. No. 784/85 was also dismissed. Hence the present revision.

Let me first of all advert to the argument based on R.25 of the Rules framed under the Act. The said rule runs as follows:

Time-limit for bringing the legal representatives on record in proceedings:--Every application for making the legal representative or

representatives of a deceased person, party to a proceeding under the Act shall be preferred within one month from the date of the death of the

person concerned or the date of having knowledge of the death of the person concerned.

In view of the decision in N. Ramanujam Naidu Vs. C. Panchanatha Mudaliar and Another, the petitioner''s contention that the petition, M.P. No.

493 of 1984 is time-barred has to be rejected. It is enough to quote the relevant passage in paragraph 5 of the said decision below :

Rule 25 in terms is not applicable to a death occurring after the decree in execution proceedings as it in terms is applicable only to proceedings

pending before the Rent Controller. Though the Rent Controller is now executing the decree, he is not executing an order of the Rent Controller

but an order which shall be deemed to be an order of the Civil Court which he is executing. In such a proceeding. R.25 is not applicable. The ratio

of the decision in Subramania Pillai Vs. Rajakkani Nadar and Another, therefore still holds good and is applicable. It may also be mentioned that in

executing the order of eviction as if it were an order of the civil Court, the Controller shall also have all the powers of the civil Court. In

proceedings in execution in civil Courts, the provision of S. 5 of the Limitation Act is (sic.,) applicable and, therefore, an application for excusing

delay in filing the petition for bringing on record the legal representative, if there is any delay, could also be maintained.

Secondly, in C.R.P. No. 4774/83 the petitioner was granted nine months'' time since 30th September, 1983, that is, the petitioner had time till 30th

June, 1984 to vacate. The present petition M.P. No. 493/84 was presented on 4th July, 1984. It cannot be disputed that the landlady or her legal

representative could not have levied execution till 30th July, 1984. In other words, the execution could be levied only on and after 1st July, 1984.

The order of eviction, when it is put in execution, becomes a decree of civil Court under S. 18 of the Act. According to S. 18. ""every order made

under Ss. 10, 14, 15, 16 and 17 and every order passed on appeal under S. 23 or on revision under S. 25 shall be executed by the Controller, as

if such order is an order of a civil Court and for this purpose, the Controller shall have all the powers of a Civil Court (Emphasis supplied by me).

A decree of a civil Court can be executed till it is barred by time. This will indisputably indicate that an application to bring on record the legal

representatives can be presented till then because they only put the decree in execution. Therefore, I find no substance in the argument advanced

by Mr. V.S. Subramanyan that even without an execution petition, a petition to bring on the legal representative could be filed within 30 days from

the date of the death of the deceased landlady. It is also relevant the point out that there is no such provision in the Act or in the rules.

It is true that in Ghose Khan v. Rent Controller, Coimbatore , Ratnavel Pandian, J., has observed as follows :

Therefore, the Rent Controller ought to have seen that the fiction created by S. 18 of the Act can be extended only for the limited purpose of

exercising the powers vested in a civil Court while executing the orders of eviction, such as, those provided under O. 21 of the Code, but cannot

be extended to matters such as those contained in O. 22 and other provisions of the Code relating to the execution of a decree.

It is interesting to note that the decision of V. Ramaswami, J., in N. Ramanujam Naidu Vs. C. Panchanatha Mudaliar and Another, , was not

brought to the notice of Ratnavel Pandian, J., when the learned Judge rendered the decision in Ghose Khan v. Rent Controller, Coimbatore 84

L.W. 568. Be that as it may, I prefer to follow the ratio laid down by V. Ramaswami, J., in N. Ramanujam Naidu Vs. C. Panchanatha Mudaliar

and Another, Here are my reasons : O. 22, R. 12 of the C.P.C., provides that nothing in Rr. 3, 4 and 8 shall apply to proceedings in execution of a

decree or order. As already pointed out by me, after a valid decree is passed, it can be enforced till it is barred by time, as provided in law. As

long as a decree can be enforced, it is obvious that an application to bring on record the legal representative can be presented within that period.

Again, in view of the ratio of the Supreme Court in Shri Krishna Singh Vs. Mathura Ahir and Others, the respondent herein is a legal

representative within the meaning of S.2(11) of the Code of Civil Procedure. It is relevant to notice that the Act does not define ''legal

representative''. When the order of eviction shall be deemed to be a decree of civil Court and when it is put in execution, S.2(11) of the CPC is

simply attracted. The ratio in Sri Krishna v. Mathura Ahir cited above, says that an intermeddler can not only be sued, as held in Firm Balkisan v.

Mt. Jatnabai , Jai Kishen Dass v. Karimuddin and The Kalyammal Mills Ltd. v. Wall Mohammed , but he is also entitled to sue. The learned

counsel for the petitioner would try to distinguish the Supreme Court decision on the ground that on the facts before the Supreme Court, the legal

representative was brought on record pending the proceeding and not after the decree was passed. The definition of ''legal representative'' in

S.2(11) of the CPC makes no such discrimination. If so, the ratio of the Supreme Court is simply attracted to the instant case as well. In view of

the above authoritative pronouncement of the Supreme Court, the decisions in Firm Balkisan v. Mt. Jaianbai , Jai Kishan Dass v. Karimuddin AIR

1938 Lah 321 and The The Kalyanmal Mills Ltd. Vs. Volimohammed and Another, cited by the learned counsel for the petitioner may not be

good law.

A reference to Suraj Prasad Vs. Mt. Lukher Kuer and Others, and Naro Vs. Harbans Lal and Another, will show that in those cases the Court

found that the legal representative was not the legal heir of the deceased. Therefore, in my view, these decisions will not render any real assistance

to the learned counsel for the petitioner.

In this case there is ample evidence to prove that the respondent is an intermeddler and is therefore a legal representative within the meaning of

S.2(11) of the Code of Civil Procedure. In the first place the petitioner himself impleaded the respondent as a respondent in the SLP in which he

challenged the order of eviction. Secondly it is the evidence of the respondent as P.W. 1 in this proceeding that the petitioner withdrew his petition

to deposit the rent into the Rent Controller''s Court and that thereafter he has been paying the rents to him (the respondent). This testimony of the

respondent as P.W. 1 was not challenged in his cross-examination. Above all, as already pointed out by me, in the teeth of the settlement deed

Ex.P1 executed by Muthuswamy, the husband of Kannammal, according to which the petition-property should be enjoyed by Kannammal for her

life and after her lifetime by the respondent herein, the heirs of Kannammal cannot have any claim over the petition-property and so the said heirs

are not entitled to execute that order. I am unable to grapple the argument advanced by the learned counsel for the petitioner that the legal

representatives have nexus only to orders of eviction and not to the property in respect of which orders of eviction are passed. I have to point out

that without the property, an order of eviction cannot be executed Thus the legal representatives have to be determined vis-a-vis the property.

In the view I have taken, I am not adverting to the arguments advanced with reference to S.15 of the Hindu Succession Act.

The learned counsel for the petitioner would not press his contention that the order of eviction is in executable in that the order was passed

under S.10 (3)(a)(iii) of the Act, and since the matter is pending consideration in an application under S.27 of the Act, pending before the learned

Rent Controller. So I am not adverting to the same. Thus, all the points fail and so the civil revision petition is dismissed with costs.