AUGUSTIN MARY Vs. GNANAPRAKASAM

JUDGEMENT

(1.) THIS revision is against the order of the learned I additional District Munsif, Coimbatore , refusing to dismiss the E. P. No. 363 of 1995 filed for taking delivery of possession of the property. The suit O. S. No. 1788 of 1981 on the file of the district Munsif, Coimbatore, was filed by the respondent herein against the tenant for recovery of possession of the site after the demolition of the superstructure and the trial court as well as the appellate court namely, the subordinate Judge, Coimbatore, granted the decree for possession, as prayed for by the plaintiff. Therefore, the decree holder filed the E. P. No. 363 of 1995 for taking delivery of possession of the suit property. The revision petitioner herein filed the E. Act to dismiss the E. P. on the ground that the decree is not in conformity with Secs. 3 and 4 of the Tamil Nadu City Tenants Protection Act, hereinafter to be referred to as Act, and therefore the decree is a nullity and cannot be executed. As the learned District Munsif rejected this petition, the aggrieved judgment-debtor has come forward with this revision.

(2.) THE learned counsel for the revision petitioner contended that the suit was filed against the revision petitioner herein admitting that she was the tenant of the site that the superstructure put up by the tenant also has been admitted in the plaint and under these circumstances sec. 3 of the Act makes it mandatory to pay compensation to the tenant or her successor in interest, who is in occupation of the site, after fixing the value as contemplated under Sec. 4 (l) of the Act. that further the court is bound to give three months time under Sec. 4 (4) for payment of the compensation amount to the tenant or her successor in interest but in this case as the decree has been passed not in conformity with these mandatory provisions, the same is illegal and the decree cannot be executed. THE learned counsel referring to the decision in Ranganathan v. Tiruchirapalli Municipal Council, (1965)2 S. C. R. 645: A. I. R. 1966 S. C. 65, would contend that when the decree is not in conformity with Sec. 4 (4) of the Act, it is a defective decree. In the case cited by him, though the court fixed the value of superstructure payable to the tenant the court did not fix a time of three months as contemplated under sec. 4 (4) of the Act for payment by the landlord to the tenant and in that connection the Supreme Court has observed that even though the time is not fixed for payment as contemplated under Sec. 4 (4) of the Act, the defective decree would not deprive the tenant of the benefit intended to be conferred on him under the above provision and the direction under the provision namely sec. 4 (4) of the Act is enforceable against the landlord. THE learned counsel further contended that even though the trial court, the Additional District munsif Court, as well as the appellate court, the Subordinate Judge, Coimbatore have granted the decree for possession without fixing the value of the superstructure, the executing court can ignore the decree in view of the nullity of the decree for want of compliance of the mandatory provisions of the act and the lower court ought to have dismissed the execution petition filed by the landlord. THE learned counsel relies upon the Full Bench decision of this court in Mohanram v. Sundaram, (1960)2 M. L. J. 30: (1960)73 L. W. 358: I. L. R. . 1960 Mad. 747: 1960 M. W. N. 389: A. I. R. 1960 Mad. 377, wherein this Court has held that in exceptional cases, the execution court can refuse to execute the decree. THE Full Bench in that case observed that when alienation of certain property is prohibited on grounds of public policy, either under the general law or by statute, the executing court can refuse to execute the decree which directed such a sale. In that case, the property, a Devadayam land, granted for performing certain services in Meenakshi Sundareswarar Temple, was in the possession of one Kuppuswamy Iyer, who mortgaged this property to a finance company and for the failure of the mortgagor to redeem the mortgage, mortgage decree was passed for the sale of the property. In execution of the decree the property was brought for sale and the Full Bench observed that the property was endowed for the temple services and therefore this inalienable property could not be transferred to anyone and such alienation is contrary to the public policy and therefore void. THE Full Bench has further observed that when the alienation itself is void, the executing court is competent to take note of it and refuse to execute the decree for sale. No doubt, the dictum of the Full Bench of this court cannot be disputed. But that was a case in which the validity of the alienation was not considered during the trial stage because the person, who was in enjoyment, was not interested to preserve the property, which was endowed for doing services to Sri Meenakshi Sundareswarar Temple. THErefore, as the validity of the alienation was not considered whereas the alienation itself was found void, the Full Bench has observed that even the executing court can go into the question. But in this case, the point raised by the revision petitioner in his petition was already raised before the trial court as well as the appellate court and both courts have negatived this claim of the tenant. In this case, though eviction suit was filed against the revision petitioner tenant, the tenant was not in actual physical possession of property and somebody was in possession. THErefore, the respondent herein, who was the plaintiff, contended that the tenant was not entitled to the benefits of the act. A specific issue namely issue No. 3 was framed by the trial court as follows: 'whether the defendant is entitled to the benefits of Sec. 3 of the Tamil Nadu City Tenants Protection Act"' THE trial court, even though has not specifically discussed the object of Sec. 3 of the Act, has found in the concluding paragraph 5 that the plaintiff landlord is entitled to have the superstructure demolished and get delivery possession of the land. Similar issue has been framed by the appellate court also to the effect'whether the defendant- appellant was entitled to the benefits of Sec. 3 of the Act.'In paragraph 11 of the appellate court judgment, it is specifically held that the appellant was not entitled to claim compensation in respect of the B Schedule superstructure. Now the only contention raised by the revision petitioner is that the lower court ought to have fixed the compensation for the superstructure put up by the tenant and three months time should have been given for payment of this amount under sec. 4 (4) of the Act and as this was not done, the decree is a nullity. But the trial court as well as the appellate court have framed specific issue on this point and they have found that the tenant was not entitled to claim compensation for the superstructure and have decreed the suit for recovery of possession after the demolition of the superstructure. This view has been taken by the said courts for the reason that the tenant was not in actual possession of the property. When such a finding has been given, even if it is erroneous the only remedy for the revision petitioner herein is to file second appeal against the findings of the lower appellate court and without doing that the revision petitioner cannot agitate before the executing court to give a finding against the conclusion already arrived at by the trial court and the appellate court. THE Supreme Court in V. D. Modiv. R. A. Rehman, (1970)2 M. L. J. (S. C.)85: a. I. R. 1970 S. C. 1475: (1970)2 S. C. J. 558: (1970)2 An. W. R. (S. C.) 85, observes, '6. A court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous,-is still binding between the parties'. This dictum of the Supreme Court is squarely applicable for this case. When the trial court as well as the appellate court have gone into the question whether the defendant is entitled to claim compensation and have found that she is not entitled to, now the executing court cannot reverse that finding and hold that the defendant is entitled to claim compensation and the same ought to have been directed to be paid within 3 months from the date of the decree. As mentioned by the Supreme Court even if the findings of the trial court and the appellate court are erroneous, still it is binding between the parties unless the same is set aside by an appropriate proceedings in the appeal and the executing court cannot go behind the decree between the same parties. THErefore, the lower court is right in rejecting the petition filed by the petitioner to dismiss the execution proceedings.