Vaithiyanathan vs Dharmapuram Adheenam

Mr. S. Tamilvanan, J.—This Civil Revision has been preferred, challenging the order and decretal order, dated 28.09.2010 made in E.A.No.100 of 2009 in E.P.No.101 of 2008 in the suit in O.S.No.84 of 2002 on the file of the Additional Subordinate Judge, Mayiladuthurai.

It is seen that the suit in O.S.No.84 of 2002 was filed by the respondent herein against one Muthukumarasamy, seeking a Judgment and Decree for evicting the defendant therein and also to direct the defendant to pay a sum of Rs.28,350/- as arrears of rent till 28.02.2002 and for other consequential relief.

The suit was decreed as prayed for, pursuant to the decree, the respondent/decree-holder filed Execution Petition in E.P.No.101 of 2008 before the Court below. As the Judgment-Debtor died, his legal heirs were brought on record, who are the petitioners 1 to 4 herein. During the pendency of the Execution Petition, an Execution Application in E.A.No.100 of 2009 was filed by the revision petitioners herein under Section 47 CPC before the Executing Court, seeking an order to declare that the decree passed in the suit is not valid and unexecutable. The said Execution Application was dismissed, against which, this Civil Revision Petition has been filed.

Mr. K.Kumar, learned counsel appearing for the petitioners/judgment-debtors submitted that the respondent herein, could have filed only a Rent Control Original Petition and not a suit, hence, the suit filed by the respondent and the decree passed in the suit are nonest in the eye of law.

Per contra, Mr. S.Sounthar, learned counsel appearing for the respondent submitted that the petitioners have not disputed that late Muthukumarasamy was only a tenant in the suit schedule property belongs to Dharmapuram Adheenam, a religious public trust, hence, the Tamil Nadu Buildings (Lease and Rent Control) Act is not applicable.

The respondent, being a public trust, filed the suit, as per procedure known to law and late Muthukumarasamy, through whom the petitioners claiming right had contested the suit and the Judgment and Decree passed by the trial court reached finality. In the aforesaid circumstances, the petitioners are not entitled to raise a vexatious plea stating that the suit property is a personal property of the Adheenam, head of Dharmapuram Mutt and not the property of the public Trust.

In order to enlighten the legal aspect, the following decisions were cited by both the learned counsel :

Urban Improvement Trust, Jodhpur v. Gokul Narain and another, AIR 1996 SC 1819 (1)

A.Karuppiah v. B.Vaithianathan, AIR 2000 Madras 21

Krishnaswami v. Rasheeda, 1980 (2) MLJ 463

Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others, AIR 1970 SC 1475 (1)

Ramachandran Marthandan, T.S v. R.Basheeruddin, 2002 (1) CTC 80

Mrs. Achamma George v. R.Krishnaswamy, 1998-1- LW 498

A.V.Hanifa v. Salima Dhanu, AIR 1992 Madras 111

Indian Overseas Bank v. A.B.Senan and another, AIR 1999 Kerala 364

In Urban Improvement Trust, Jodhpur v. Gokul Narain and another, reported in AIR 1996 SC 1819 (1), while interpreting Section 47 of the Code of Civil Procedure, the Hon''ble Apex Court has held that a decree is a nullity, if it is passed by any Court, without jurisdiction and hence, such decree, could be questioned at any stage, including Execution Proceedings. It has been further held in the decision as follows :

"16...As stated earlier, if the decree strikes at the jurisdiction of the Court or the Court lacks jurisdiction is strikes at the very root of the authority to pass the order or the decree. As seen, the Amendment Act 68 of 1984 has no application to the lands acquired under the Act. It was amended only w.e.f August 1, 1987 and it was made applicable only to the pending proceedings. It would, therefore, be clear that the order awarding additional benefits is clearly without jurisdiction and thereby it is a nullity. Its nullity can be assailed at any stage including at the execution or in a collateral proceedings, since it strikes at the very jurisdiction and authority of the Court."

In A.Karuppiah v. B.Vaithianathan, reported in AIR 2000 Madras 21, a Division Bench of this Court has held that the defendant who was declared as a tenant, within the meaning of Section 2 (10) of Pondicherry Buildings (Lease and Rent Control) Act, 1969, has to be evicted from the rented premises, only on the application filed under Section 10 of Pondicherry Buildings (Lease and Rent Control) Act, 1969 before the Rent Controller and Rent control proceeding would be proper and hence, the trial court therein had no jurisdiction to entertain a suit.

Learned Single Judge of this Court (Mr. S.Natarajan, J) in Krishnaswami v. Rasheeda, reported in 1980 (2) MLJ 463, held that the decree passed against the petitioner therein was not null and void. Only its executability has been impugned by Section 10 (1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, whereby the decree obtained by the respondent therein could be inexecutable.

Mr. S.Sounthar, learned counsel appearing for the respondent submitted that the aforesaid decisions are not applicable to the facts and circumstances of the case, since the Tamil Nadu Buildings (Lease and Rent Control) Act is not applicable, as the suit property was given under lease, belongs to the religious public trust. Learned counsel further contended that the jural relationship of landlord and tenant between the respondent and late Muthukumarasamy is not in dispute. The petitioners, being the legal heirs of the said Muthukumarasamy are not entitled to raise any new right, more than the right, that was available to late Muthukumarasamy, through whom, the petitioners claim right as tenants.

Neither late Muthukumarasamy nor the petitioners, as legal heirs has disputed saying that Dharmapuram Adheenam is not a religious public trust. According to the learned counsel appearing for the petitioners, the property is a private property of Dharmapuram Srilasri Shanmuga Desika Gnanasambandha Swamigal Estate and he relied on a receipt, dated 21.08.2003.

Mr. S.Sounthar, learned counsel appearing for the respondent submitted that the petitioners are not entitled to raise a new defence based on the receipt, that was issued without prejudice by a person, who issued the receipt on behalf of the trust.

In A.V.Hanifa v. Salima Dhanu, reported in AIR 1992 Madras 111, this Court (Mr. M.Srinivasan, J) has held as follows :

"9...When the section refers to all questions, it only means all questions which were not raised in the suit and decided by the trial Court. If a question was raised before the trial Court at the stage of trial and decided by the trial Court it is not open to the parties to raise it again at the stage of execution. Similarly, if a question ought to have been raised by a party before the trial Court at the stage of trial and if he omits to raise it, even then he cannot raise it u/s 47 before the executing Court."

It has been made clear in this decision that in Execution Proceeding, the judgment-debtor or persons claiming right through judgment-debtor are not entitled to raise a plea that was already raised and decided by the trial court or appellate court.

The Hon''ble Supreme Court in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others, reported in AIR 1970 SC 1475 (1), has held that when the decree is made by a Court, which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding, if the objection appears on the face of the record; where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court would have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.

In the aforesaid decision, the Hon''ble Apex Court has ruled that where there is necessary to investigate the facts in order to determine whether the Court which had passed the decree had no jurisdiction to entertain and try the suit, the objection cannot be raised in the execution proceeding. The decision clearly highlight the point that if the question of disputing the jurisdiction needs factual aspects to be decided and such objection cannot be raised in the Execution Proceeding.

Mr. S.Sounthar, learned counsel appearing for the respondent submitted that it is not in dispute that Dharmapuram Adheenam, Hindu mutt is a religious public trust. The Adheenam is a person, who renounced his family life and therefore, he cannot have any private property or any legal heirs as that of ordinary persons. In the suit itself, it has been clearly stated that the R.C.O.P premises is the property belongs to Dharmapuram Mutt. The trial Court, having considered the legal aspect that the Tamil Nadu Buildings (Lease and Rent Control) Act, not applicable to the property, has admitted the suit. Even in the written statement, late Muthukumarasamy has not raised any objection stating that it is the private property of the Adheenam of the Mutt. In the aforesaid circumstances, the petitioners, legal heirs of the defendant, late Muthukumarasamy are not entitled to raise such vexatious plea before the Executing Court, in the light of the decisions rendered by the Hon''ble Supreme Court.

In Ramachandran Marthandan, T.S v. R.Basheeruddin, reported in 2002 (1) CTC 80, relying on earlier decision in Mrs. Achamma George v. R.Krishnaswamy, 1998-1- LW 498, this Court (Mr. P.Sathasivam, J), has held as follows :

"13...In the light of the factual position in our case, as discussed above, I am in agreement with the view expressed by the learned Judge and the said principle is applicable to our case also. In such circumstances, the contra argument made by the learned counsel for the petitioner that the decree of the Trial Court is to be set aside on the ground of nullity, want of jurisdiction etc., are liable to be rejected. Further, in as much as similarly contentions have been raised and rejected by the Sub- Court, this Court as well as the Supreme Court, the petitioner cannot be allowed to raise the same objection once again in the execution proceedings..."

In Mrs. Achamma George v. R.Krishnaswamy, reported in 1998-1-LW 498, this Court (Mr. S.Jagadeesan, J), has held thus :

"10. From the above referred judgments, it is very clear that the ex parte decree would attract the principles of res judicata in accordance with Section 11 of the C.P.C. where the issues involved in the earlier and subsequent proceedings are the same and the party was put on notice about the same in the earlier proceedings. As already stated, the petitioner was fully aware about the pleadings in the plaint and he has filed the written statement disputing the averments made in the plaint. But, unfortunately, in the language of the learned Counsel for the petitioner, the petitioner remained ex parte. The proceedings initiated for setting aside the ex parte decree also ended adverse to him. In such case, it is not open to him to raise the same plea by way of an application under Section 47 of the C.P.C. In view of the above finding it cannot be said that the decree is a nullity."

In Indian Overseas Bank v. A.B.Senan and another, reported in AIR 1999 Kerala 364, it is held by the Kerala High Court that when a proposition is mixed with law and facts, the executing court cannot decide that the decree is a nullity, based on the plea of the Judgment-debtor or third party.

In the light of various decisions cited by both the learned counsel, I am of the considered view that the petitioners, legal heirs of late Muthukumarasamy, the defendant in the suit, pertaining to the Execution Petition are estopped from raising a plea that was already decided in the suit, while passing the decree. It is not in dispute that the respondent/landlord had filed the suit stating that the property belongs to Dharmapuram Adheenam Mutt, a Hindu religious public trust. As submitted by Mr. S.Sounthar, learned counsel appearing for the respondent, the Adheenam of the said Mutt is a person, who had renounced his family life and he is only the head of the said Mutt and his successor is only the next Adheenam, succeeding the office, as per procedure being followed, however, the Adheenam cannot have any legal heir like any other person. Merely based on subsequent printed receipt issued for certain payments made towards the rent in the year 2003, that was received without prejudice by official of the Mutt, the petitioners cannot raise a new plea stating that the respondent is not a public trust and that the property is a private property of the head of the Mutt. The plea of the petitioners is totally unsustainable in law.

In the instant case, it is also not in dispute that the petitioners have claimed that they are the legal heirs of the erstwhile teanant, late Muthukumarasamy and that they have not paid any rent after August 2003, for about 9 years. Since the petitioners have claimed right only as tenants, without paying any rent to the landlord or depositing the same before the Court below, they are not entitled to prefer any revision and in such circumstances, it could be construed only as an abuse of process of law. Hence, this Court is of the view that the tenant or his legal heirs, who admittedly failed to pay the rent for about 9 years have no locus standi to approach any Court, seeking remedy as an aggrieved party. The plea raised by the petitioners herein that the property is the personal property of the head of the Mutt (Madathipathi) in this revision is contrary to the Judgment and Decree, which has reached finality and further, the question of law raised by the petitioners needs evidence to establish the factual aspects. Hence, which cannot be raised before the Executing Court, challenging the decree, in the light of various decisions rendered by the Hon''ble Supreme Court and this Court.

On the facts and circumstances, it is crystal clear that there is no error or infirmity in the impugned order and decretal order, dismissing the Execution Application filed by the petitioners, so as to warrant any interference in this revision and accordingly, the same is liable to be dismissed.

In the result, this Civil Revision Petition is dismissed. Consequently, connected M.P.No.1 of 2011 is also dismissed and M.P.No.1 of 2012 is closed. The petitioners are directed to vacate and hand over the premises, within one month from the date of receipt of a copy of this order. No costs.

C.R.P Dismissed - M.P.1/2011 Dismissed - M.P.1/2012 Closed - No