K.N. SAMPATH MUDALIAR Vs. SAKUNTHALA AMMAL

JUDGEMENT

(1.) This civil miscellaneous second appeal arises out of execution proceedings, and it serves as an illustration of the difficulties of a judgment -creditor, who, after the decree in his favor, finds himself from the frying pan to the fire. The elaborate provisions of the Code of Civil Procedure in the execution chapter are designed to prevent the decree -holder from snatching the property of the judgment -debtor, but in actual operation, they have the unintended effect of keeping the decree -holder at bay and away from the fruits of his decree. Not unoften, the process of execution occupies more time than the duration of the suit, the reason being that it is the last ditch for the judgment -debtor to offer resistance and that the Statute gives him full assistance in that endeavor. But that is law, and the duty of the Court is only to administer it.

(2.) The following facts bring out the present contest between the parties. One Somasundara Mudaliar, who was the owner of an item of property, forming the subject -matter of this appeal, filed a suit against the present Appellant, Sampath Mudaliar, and two others, for recovery of possession on the footing that the Appellant was a tenant of that property. The Appellant was impleaded as the third Defendant in that suit, which is Original Suit No. 630 of 1941, on the file of the District Munsif's Court, Poonamallee. The suit ended in a compromise, which took the shape of a joint endorsement made by the parties. A decree in terms of the joint endorsement followed. The decree was that the first Defendant in that suit should deliver possession of the property to the Plaintiff, that he should pay the arrears of rent, and, damages for use and occupation claimed by the Plaintiff, and that the Appellant and the second Defendant in that suit should be given six months' time to vacate the property. It appears that, notwithstanding the fact that Somasundara had an executable decree in his favor for recovery of possession, the Appellant -third Defendant continued to be in possession. Somasundara, however, agreed to convey the property in favour of a certain Sakunthalammal, the Respondent herein, for consideration. Sakunthalammal instituted a suit, Original Suit No. 202 of 1955, on the file of the District Munsif's Court, Poonamalle claiming specific performance of the contract in her favour, and eventually obtained a decree. That was also a decree based upon compromise between the parties. Somasundara undertook to execute and register a sale -deed in favor of Sakunthalammal, conveying the property. Actually, Somasundara executed a registered conveyance on 24th February 1960, in favor of Sakunthalammal. The sale deed expressly mentioned that the vendee (Sakunthalammal) should get herself impleaded as a party in the proceedings in Original Suit No. 630 of 1941, and get possession by delivery through Court. Thereafter, Sakkunthalammal filed Miscellaneous Petition No. 1095 of 1960, in Original Suit No. 630 of 1941, praying for delivery of possession, on the ground that she had become entitled to execute the decree by virtue of the sale -deed in her favor. The executing Court, impleaded her as a party in that suit and directed delivery of possession. No notice of that proceeding was, however, given to the third Defendant in that suit, namely, the Appellant herein. This order was passed on 8th August 1960. But Sakunthalammal appears to have been unable to take possession of the property. The Appellant filed Execution Application No. 1756 of 1961, in Original Suit No. 630 of 1941, an application purporting to be under Sec. 47, Sec. 151 and Order XXI, Rule 16 of the Code of Civil Procedure, praying for cancellation of all the execution proceedings commencing from the impleading of the Respondent as a party and for other appropriate reliefs. He contended that the order impleading the Respondent as a party to the execution proceedings in Original Suit No. 630 of 1941 was illegal, if not null and void, as such an order has been passed without notice to him. He pointed out that the application of the Respondent was, in substance, one under Order XXI, Rule 16, and that provision was quite mandatory in stating that notice should go not merely to the original decree -holder but also to the judgment -debtor. He, further, contended that he must be deemed to be a tenant entitled to the benefits of the Madras Buildings (Lease and Rent Control) Act, and that he could not be evicted through process of Court in execution proceedings, as the proper authority to order eviction would only be the statutory authority under the special enactment. This application was resisted by the Respondent, who submitted that the earlier proceedings were not under Order XXI, Rule 16, Code of Civil Procedure but were only under Sec. 146 of the Code of Civil Procedure, that there was no relationship of landlord and tenant between her and the Appellant, that, therefore, the Buildings and Rent Control Act could not be invoked, and that the application should be dismissed. Both the learned District Munsif of Poonamalle, the executing Court, and the learned District Judge at Chingleput have now concurrently held that the contentions raised by the Appellant are without substance and are not well -founded. Hence this civil miscellaneous second appeal by the aggrieved judgment -debtor in Original Suit No. 630 of 1941.

(3.) I may at once state that there is no substance in the contention that the Appellant can be evicted only under the machinery of the Buildings Rent Control Act and not by levy of execution. I am clearly of opinion that the terms of the joint endorsement, that Defendants 2 and 3 do pay Plaintiff, rupees 3 per mensem from today for their occupation for the six months and, the same will be recovered in execution of this decree, do not constitute the rural relationship of landlord and tenant, which is the first essential requisite for calling in aid the Act. This contention was rightly overruled by the Courts below.