HAJEE ABDULLAH SAIT Vs. MOHANDAS

JUDGEMENT

(1.) THIS appeal in filed against the order of the City Civil Court in C. M. P. No. 41 of 1975 (in O. S. No. 30323 of 1961), an application under S. 47 of Civil P. C. filed by the legal representatives of the deceased judgment-debtor praying for an order that the decree in S. A. No. 83 of 1965 was not executable under S. 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act (Tamil Nadu Act 18 of 1960 ). The court accepted the contention and allowed the petition holding that the decree in the second appeal (S. A. No. 83 of 1965) in favour of the appellant herein was not executable. The decree-holder has now preferred this civil miscellaneous appeal.

(2.) THE only question that arises for consideration in the appeal is whether the respondents are tenants entitled to the benefits of S. 10 of Tamil Nadu Act 18 of 1960. It is necessary to set out the relevant facts in this dispute between landlord and tenant which commenced in 1961 and has lasted for over fifteen years. On 20-2-1954 a lease deed was executed between the appellant's father (landlord) and K. D. Moorjani (tenant ). On 4-4-1961 the landlord terminated the tenancy and on 4-10-1961 the landlord filed O. S. No. 30323 of 1961 on the file of the III Assistant Judge, City Civil Court, Madras, for evicting the tenant, Moorjani. On 30-11-1961 the suit was decreed ex parte for possession. In pursuance the ex parte decree the landlord took possession in execution of the decree in E. P. No. 210 of 1962. The next day i. e. , 13-2-1962, the tenant filed a petition, I. A. No. 180 of 1962, for setting aside the ex parte decree. On 5-5-1962 I. A. No. 180 of 1962 was dismissed. On 29-10-1962 the Principal judge, City Civil Court allowed the appeal filed by the tenant in C. M. A. No. 39 of 1962, set aside the ex parte decree and restored the suit. After the suit was restored and after fresh trial, the suit was decreed on 8-2-1964. on the same day an execution petition filed by the tenant for restitution was dismissed. After the suit was decreed, on 10-6-1964 an amendment was made to the Tamil nadu Buildings (Lease and Rent Control) Act, 1960, withdrawing the exemption in the case of nonresidential buildings and providing that all pending proceedings relating to such buildings for which exemption was withdrawn shall abate. On 8-12-1964 the Additional Judge, City Civil Court allowed the appeal filed by the tenant in A. S. No. 130 of 1964 and dismissed the suit. He also ordered restitution of possession the tenant. The tenant took redelivery of possession on 23-2-1965. The landlord preferred an appeal (S. A. No. 83 of 1965) to this Court against the judgment in A. S. No. 130 of 1964. While it was pending, on 2-1-1967 Moorjani died and his legal representatives were brought on record. On record. On 10-12-1974 this Court allowed S. A. No. 83 of 130 of 1964 and restored the decree for possession in O. S. 3023 of 1961. C. M. S. A. No. 4 of 1965 filed by the landlord against the order directing restitution to the tenant was also allowed by this Court. The petitions filed by the respondents for leave to appeal to the Supreme Court were dismissed on 23-12-1974. The special leave petition to the Supreme Court also met with the same fate on 151-1975. The dispute now before us arises after this stage.

(3.) IN pursuance of the decree obtained in the second appeal, the landlord contemplated taking execution proceedings. In order to forestall it, the respondents filed C. M. P. No. 7673 of 1974 praying that, if the landlord filed any execution petition, they must be given notice and that execution must be stayed. The landlord filed a petition for execution on 23-12-1974. On the next day notice of the execution petition was given to the legal representatives of the tenant, and they filed C. M. P. no. 41 of 1975 under S. 47 of the Code Civil procedure for a declaration that the decree was ineluctable. The present order under appeal was passed by the executing court on 3-5-1975 holding that the decree was inexecutable on the ground that the respondents would be tenants within the meaning of the definition of the term in the Amending Act 23 of 1973.