V. Shanmugham and another vs M/s. Carona Sahu Co. Ltd., Bombay

The short question that arises for consideration in this Civil Revision Petition is, whether the purchaser of a building pending disposal of the

revision petition in this court against an eviction order is entitled to execute the decree for eviction notwithstanding the fact that the purchaser has

not been brought on record before the final disposal of the revision petition.

The petitioners herein have purchased the suit premises on 29-12-1984 under a registered sale deed from one Thajudeen. The original owner,

namely, Thajudeen had filed R.C.O.P. No. 90 of 1976, on the file of the Rent Controller (District Munsif), Salem, for eviction of the tenant

(respondents herein) on the ground of wilful default in payment of rents and obtained an order of eviction. The appeal filed against the order of

eviction was also dismissed. The tenant further preferred a civil revision petition in this Court in C.R.P. No. 2076 of 1983. When the C.R.P. was

pending, the petitioners herein purchased the suit premises. It is common ground that immediately after purchase, tenant attorned the tenancy in

favour of the petitioners herein and have been paying rents to the petitioners. However, the tenant did not take any steps to implead or to bring on

record the purchasers as respondents in C.R.P. No. 2076 of 1983. It is also common ground that the original owner, namely, Thajudeen did not

appear and contest the civil revision petition. Therefore, the C.R.P. was heard on merits by hearing the learned counsel for the tenant and the same

was ultimately dismissed confirming the order of eviction on 7-10-1988. Before the disposal of the C.R.P., the petitioners herein seem to have filed

R.C.O.P. No. 101 of 1987 on 24-7-1987 for eviction of the tenant under Ss. 10(2), 10(3)(a)(iii) and 14(1)(b) of the Tamil Nadu Buildings

(Lease and Rent Control) Act, 1960 (hereinafter referred to as ''the Act''). That R.C.O.P. was dismissed after the dismissal of the C.R.P.2076 of

1983, Against the dismissal of R.C.O.P. No. 101 of 1987, it is stated, an appeal is pending. While so, taking advantage of the dismissal of C.R.P.

No. 2076 of 1983, the petitioners filed E.P.3 of 1989 to execute the order of eviction passed in R.C.O.P. No. 90 of 1976 confirmed in C.R.P.

No. 2076 of 1983. That execution petition was resisted inter alia contending that inasmuch as the petitioners herein (purchasers) having not taken

steps to come on record in C.R.P. No. 2076 of 1983 and prosecute the matter cannot take advantage of the order in C.R.P. and seek execution

of the same. In support of that, they placed reliance on a decision in Syed Shafee v. S. Asmath Basha reported in (1988) 102 MLW 261. The

executing court, accepting the objection taken by the tenant, dismissed the E.P. as not maintainable. Hence the present civil revision petition.

Mr. S. Jagadeesan, learned counsel appearing for the petitioners, submitted that the executing court went wrong in applying the ratio in (1988)

102 MLW 261 (supra) as the facts are entirely different. According to Mr. S. Jagadeesan, the tenant, notwithstanding the non-appearance of the

original owner in the C.R.P., took a chance by arguing the C.R.P. on merits and having got a decision adverse against him cannot now be heard to

say that the order in the C.R.P. is not executable by the petitioners who are purchasers of the suit premises. He also submitted that the purchasers

of the subject matter of the suit property can apply for execution of the decree without a separate assignment of the decree. In support of that, he

placed reliance on a decision of this court in Gnanasundaram and Another Vs. Murugesa Naicker, . Again, placing reliance on a judgment in M. A.

Abdul Rahiman, Abdul Rahim v. A. P. Abdulla reported in (1967) 80 Mad LW 54 (I), the learned counsel submitted that the execution petition

filed by the purchaser is maintainable. Again he relied on another judgment in Sunavai Bashav. Narayanan reported in Munavar Basha and Another

Vs. V. Narayanan and Another, and contended that the fact that the petitioners filed R.C.O.P. 101 of 1987 will not in any way deprive the

petitioners from executing the eviction order in R.C.O.P. No. 90 of 1976 as confirmed in C.R.P. No. 2076 of 1983. For the same contention, he

cited another judgment in N. Subbanna Vs. N. Seshagiri Rao and Another, .

Mr. T. R. Rajagopalan, learned counsel appearing for the tenant, contending contra, submitted that the ratio laid down in (1988) 102 MLW

261 (supra) squarely applies to the facts of this case and, therefore, the executing court was right in dismissing the execution petition as not

maintainable. He submitted that the decision in Munavar Basha and Another Vs. V. Narayanan and Another, is distinguishable on facts. According

to him, in the judgment reported in Munavar Basha and Another Vs. V. Narayanan and Another, , the purchaser got himself impleaded soon after

the purchase and continued the proceedings and, therefore, the principle laid down therein cannot be applied to the facts of this case wherein the

purchaser failed to come on record and continue the proceedings.

I have considered the rival submissions. In (1988) 102 MLW 261 (supra), the tenant who was the revision petitioner, at the time of final hearing

of the civil revision petition, advanced an argument stating that the landlord having parted with the property, and the purchaser having not been

brought on record, the proceedings cannot be continued by the quondam owners and the quondam owners also will have no locus standi to

continue the proceedings. Accepting that argument, this Court (Sivasubra-maniam, J.) terminated the eviction proceedings. But in the case on

hand, as noticed earlier, though the quondam owner was not interested in prosecuting the matter by contesting the case, it is the tenant who argued

the matter on merits and got an order adverse against him. The tenant could have taken a stand as the one advanced by the tenant in the case

reported in (1988) 102 MLW 261 (Supra). Instead, the tenant in the case on hand took a chance and got a decision adverse against him.

Therefore, I am of the view that the tenant cannot press into service the ratio laid down in (1988) 102 MLW 261 (Supra).

In Munavar Basha and Another Vs. V. Narayanan and Another, Jagadisan, J., while considering the right of purchaser of a building, has held as

follows (at pp. 204-05 of AIR):

It is clear, therefore, that none of the circumstances relied upon by the tenant, namely, the attornrnent, the application for eviction filed by the

purchasers, and the institution of the suit for recovery of arrears of rent, can individually or collectively constitute/fresh tenancy agreement between

the purchasers and the tenant after the purchase. The tenant is a statutory tenant who is in any event bound to pay the rent due to the premises.

Even if the tenant had paid the rent to the purchasers and the rent had been accepted by them, it will not be possible to infer from such payment

and acceptance a new contract of tenancy between the purchasers and the tenant. The mere institution of a suit for recovery of arrears of rent

cannot be a strong circumstance In favour of the tenant than payment of rent by him to the put chaser.

Further on the facts of the instant case the averments in para 6 of the plaint in O.S. No.815 of 1959, City Civil On . Madras, unmistakably show

that the purchasers were instituting the suit without prejudice to their rights to enforce the order of eviction already obtained before the House Rent

Controller. The question is one of animus and the real intention of the parties. Can it be said that the purchasers abandoned and waived their rights

to enforce the eviction order by entering into a new contract, express or implied? There cannot be a valid contract without consensus ad idem of

the terms of the contract between the parties.

The purchasers were very clear in their minds that they should get possession from the tenant. They took every step only to achieve that purpose.

The circumstances in the case militate against there being a fresh contract oflease between the parties superseding the rights and obligations

stemming out of the eviction order. I am unable to hold that on the materials placed before me there was a fresh contract of lease or tenancy

between the purchasers and the tenant."" (Para 26)

Mr. T. R. Rajagopalan, learned counsel appearing for the tenant wanted to distinguish this case on the ground that on facts in that case the

purchaser got himself irnpleaded and continued the proceedings and, therefore, the principle laid down in that case will not apply to the facts of this

case. I do not think that that contention can be accepted as the principle laid down by the learned Judge was in general. Further, in (1967) 80

MLW 54 (supra), Alagiriswami, J. as he then was, has taken the view that the order of eviction which has become final can be put into execution

by the purchaser from the landlord. The decision in N. Subbanna Vs. N. Seshagiri Rao and Another, is not quite relevant to the facts of the present

case except to the extent that the learned Judge (Ramaprasad Rao, C.J.) has applied the ratio in Munavar Basha and Another Vs. V. Narayanan

and Another, in that case.

In Gnanasundaram and Another Vs. Murugesa Naicker, , K. M. Natarajan, J., after referring to several judgments of this court and of the

Supreme Court, has held as follows (at p. 345 of AIR):

As rightly observed by the courts below by virtue of the Explanation to R. 16 of 0,21, C.P.C. read with S. 146, C.P.C. the respon- dent who got

transfer of the subject matter of the suit by virtue of the sale in his favour can apply for execution of the decree without a separate assignment of the

decree as required by R. 16. Learned counsel for the appellants merely submitted that the Explanation to R. 16 of 0. 21, C.P.C. was added by

Amendment Act 104 of 1976 and it was repealed and that the Explanation cannot be taken to undermine the meaning of the main section. I do not

find any merit in the said contention. There is absolutely nothing to show that the Amendment Act 104 of 1976 was repealed. Since the

amendment was carried out in the main Act, the separate Act was considered to be repealed as superfluous. In the circumstances, it cannot be

said that the Explanation has no weight, it cannot also be said that the Explanation takes away the effect and purport of the main rule. It is only an

explanatory note to R. 16. In view of the main provision in R. 16, it is provided that a transferee of rights in the property, which is the subject

matter of the suit, may apply for execution of the decree without a separate assignment of the decree, on the ground that the said document is

unnecessary in view of the conveyance deed already obtained by him. There is absolutely nothing to show that the Explanation runs counter to the

main rule and as such it has no effect.....

It is not in dispute that the CPC applies to execution proceedings in rent control matters. Further, the petitioners have come on record in the

execution proceedings in the place of the quondam owner.

For all these reasons, I hold that the court below is not right in holding that the execution petition is not maintainable. Accordingly, I set aside the

order of the Court below and direct the court below to consider the execution petition and dispose of the same on merits expeditiously. The civil

revision petition is allowed. However, there with be no order as to costs.

Petition allowed.