V SHANMUGHAM Vs. CARONA SAHU COMPANY LIMITED

JUDGEMENT

(1.) 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.

(2.) 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 Mad LW 261. THE executing court, accepting the objection taken by the tenant, dismissed the E.P. as not maintainable. Hence the present civil revision petition.

(3.) IN 1989 AIR(Madras) 343 (supra), 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 O. 21, C.P.C. read with S. 146, C.P.C. the respondent 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 O. 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 Code of Civil Procedure 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.