RADHESHYAM MODI Vs. JADUNATH MOHAPATRA

JUDGEMENT

(1.) This revision is directed against an order passed by an Executing Court refusing the prayer of the surviving judgment-debtor to drop the Execution Case as not maintainable. The facts in brief leading to the aforesaid order may be stated as follows : The present opp. party (Jadunath Mohapatra) filed a proceeding under the Orissa House Rent Control Act against the present petitioner and his father Mohanlal Modi alleging that the said Mohanlal was a tenant in respect of a shop room and that he is liable to be evicted on the ground of wilful default and also for the reason that the landlord required the house bona fide for his own purpose. It has been stated that there was no allegation in the said proceeding that the present petitioner was a tenant under the present opp. party, though he was included as one of the opp. parties in the said proceeding. The petitioner alleges that he is one of the 5 sons of Mohanlal. The petitioner and his father (since dead) denied the relationship of landlord and tenant and set up a case that Mohanlal was a tenant under one Sitanath, a co-sharer of Jadunath. It was alleged that Sitanath having died some time prior to the initiation of the House Rent Control Proceeding : Mohanlal became the tenant under his son Prasanna Mohapatra, to whom he was paying rent. The House Rent Controller on consideration of the evidence on record dismissed the application for eviction. The landlord carried up the matter to the appellate Court which reversed the decision of the House Rent Controller and allowed the prayer for eviction. The aforesaid order of eviction is under execution in the Court of Munsif, Balasore. Mohanlal died on 24-5-1985 at Balasore of which intimation was given to the Executing Court. He has left behind his 5 sons and two daughters of whom the petitioner alone was a party in the House Rent Control Proceeding as well as in the Execution Case. Despite the intimation of death no steps for substitution were taken by the landlord-decree-holder to bring the other legal representatives on record. The present petitioner filed an application objecting to the executability of the order of eviction on the ground that the proceeding has abated for non-substitution of the other legal representatives of the deceased Mohanlal, who were in possession of the shop room in question and were running business in medicine therein. By the impugned order the Executing Court dismissed the said application holding that the Execution Case is maintainable in the absence of other legal representatives. Hence this revision.

(2.) Mr. Kar, learned Counsel for the petitioner at the first instance, urged that the executing proceeding arising out of an order of House Rent Controller, is a civil proceeding, which would abate for non-substitution of the legal representatives. But the said argument was not pursued in view of the provisions contained in O.22, R.12 of the Code of Civil Procedure, which provides that nothing in Rules 3, 4 and 8 shall apply to proceeding in execution of a decree or order The Rr. 3 and 4 of the said Order prescribe procedures for substitution in case of death of a plaintiff or a defendant respectively and the consequence of non-substitution of their legal representatives. The scope of R. 8 with which we are not concerned, is however, different. There would be no question of abatement of the execution proceeding for non-substitution of the legal representatives of deceased judgment-debtor, if the relevant rules of O. 22 would not apply. In the event of death of a judgment-debtor during the pendency of an execution case, whether it is necessary to bring the legal representatives to record for the purpose of successful execution of the decree and whether the execution proceeding would be maintainable in the absence of the proper parties, are however, different matters, which I deal with later on.

(3.) The main argument of Mr. Kar in this case has been that the petitioner's father, by virtue of the provisions of the Orissa House Rent Control Act was a statutory tenant and after his death the petitioner has inherited the tenancy as it is a heritable right. He has relied upon a decision of the Supreme Court reported in AIR 1985 SC 796 (Smt. Gian Devi Anand v. Jeevan Kumar), in support of the proposition that the right of a statutory tenants is heritable. In order to appreciate the aforesaid contention it is necessary to analyse the conception of 'statutory tenancy' which expression in the language of the Supreme Court in the aforesaid decision is coined by the Judges in England and has been imported into the jurisprudence of this country and has become an expression of common use to denote a tenant whose contractual tenancy has been determined, but who is continuing in possession of the premises by virtue of the protection against eviction afforded to him by the rent control legislation. The definition of "tenant" as given in the Orissa House Rent Control Act means a person by whom or on whose behalf the rent is payable for any house and includes every person who from time to time derives title under a tenant, or a person continuing in possession after the termination of his tenancy otherwise than under the provisions of this Act and shall include any person against whom a suit for ejectment is pending in a Court of competent jurisdiction, but not a person against whom a decree or order for eviction has been made by such a Court. Generally speaking tenancy is a matter of contract and the relationship of landlord and tenant is governed by the provisions of the Transfer of Property Act. The Transfer of Property Act makes provision for termination of tenancy under various circumstances, such as (i) by efflux of time; (ii) by happening of some event where such is the condition of tenancy; (iii) by merger of interest of the lessee and the lessor in one person; (iv) by express surrender; (v) by forfeiture; and (vi) by notice to quit. Thus when a contractual tenancy is determined by any of the aforesaid processes and the tenant whose tenancy has come to an end thereby still remains in possession of the property by virtue of the provisions of a statute like the Rent Control Act his right to continue under the provisions of the said Statute is often termed as a statutory tenancy. In such cases the relationship being a creature of a particular statute, the right to continue in possession is solely referable to the said statute. It may be further noted that sub-section (5) of S. 7 of the House Rent Control Act expressly provides that notwithstanding anything contained in S. 106 of the Transfer of Property Act, it shall not be necessary for the landlord to serve a notice for termination of the tenancy of the tenant for the purposes of proceedings under this section. This is so provided because in spite of a notice for termination of tenancy duly served on the tenant, he shall still continue to be a tenant as per the definition of the expression "tenant" given in the Orissa House Rent Control Act. The only way of termination of the tenancy to which provisions of the House Rent Control Act applies would be by taking recourse to S. 7 of the Act. It is, therefore clear that a tenant against whom the House Rent Controller has passed an order of eviction, no more continues to be a tenant and the tenancy stands terminated.