ACHAMMA GEORGE Vs. R KRISHNASWAMY

JUDGEMENT

(1.) SINCE the matter arises under execution, with the consent of both the counsel, the civil revision petition has been taken up for final disposal.

(2.) THE respondent herein filed a suit O.S.No. 11723 of 1988 on the file of the X Assistant City Civil Judge, Madras for recovery of possession. His case is that the construction of the building was completed in the year 1984 and it was leased out to the petitioner herein on 3.2.1987. Since the petitioner requires the building for his won occupation, he has filed a suit. He cannot initiate the eviction proceedings under the Tamil Nadu Buildings (Lease and Rent Control) Act, in view of the exemption granted under Sec.30 of the said Act, i.e., for the building which is less than five years old. THE petitioner filed a written statement stating that the court has no jurisdiction to entertain the suit and the respondent has to initiate the eviction proceedings only under the Tamil nadu Buildings (Lease and Rent Control) Act. THE exemption claimed under Sec.30 of the said Act is not available to the respondent, since the building was completed as early, as 1982. THE petitioner has paid the arrears of tax for the half years 1/85-86 and 2/87-88 to the tune of Rs.3,914.70 and as such the petitioner has deducted the property tax and paid the balance. He has also raised other pleas with which we are not concerned for the disposal of this C.R.P. THE said suit was decreed ex parte on 1.3.1991. THE respondent filed E.P.No.3498 of 1993 to execute the said decree. In the execution proceedings, the petitioner has filed an application E.A.No.308 of 1996 under Sec.47 of the C.P.C. seeking for a declaration that the decree in O.S.No. 11723 of 1988 dated 1.3.1991 is nullity and as such it is inexecutable, contending that the civil court has no jurisdiction to try the suit as the exemption granted under Sec.30 of the Tamil Nadu Buildings ((Lease and Rent Control) Act is inapplicable to the building. Further even though the notice under Sec. 106 of the Transfer of Property Act terminating the lease had been issued on 28.9.1988, subsequently the rent has been deducted from the advance amount paid by the petitioner and hence the notice of termination of lease is invalid. By virtue of the conduct of the respondent in deducting the arrears and deducting the rent from out of the advance amount, the landlord has waived the termination of lease. THE executing court by order dated 22.11.1996 dismissed the said E.A.No.308 of 1996. Aggrieved by the same, the present revision has been filed.

(3.) THE main contention of the learned counsel for the petitioner is that the decree is a nullity and as such the same cannot be executed. THE two reasons given by the learned counsel for the petitioner to claim that the decree is nullity, are: