Applicability of provisions of Code of Civil Procedure in execution proceedings.

The short question that arises for consideration in this Civil Revision Petition is, whether the purchaser of a building pending disposal of the revision petition in this court against an eviction order is entitled to execute the decree for eviction notwithstanding the fact that the purchaser has not been brought on record before the final disposal of the revision petition.

2. The petitioners herein have purchased the suit premises on 29-12-1984 under a registered sale deed from one Thajudeen. The original owner, namely, Thajudeen had filed R.C.O.P. No. 90 of 1976, on the file of the Rent Controller (District Munsif), Salem, for eviction of the tenant (respondents herein) on the ground of wilful default in payment of rents and obtained an order of eviction. The appeal filed against the order of eviction was also dismissed. The tenant further preferred a civil revision petition in this Court in C.R.P. No. 2076 of 1983. When the C.R.P. was pending, the petitioners herein purchased the suit premises. It is common ground that immediately after purchase, tenant attorned the tenancy in favour of the petitioners herein and have been paying rents to the petitioners. However, the tenant did not take any steps to implead or to bring on record the purchasers as respondents in C.R.P. No. 2076 of 1983. It is also common ground that the original owner, namely, Thajudeen did not appear and contest the civil revision petition. Therefore, the C.R.P. was heard on merits by hearing the learned counsel for the tenant and the same was ultimately dismissed confirming the order of eviction on 7-10-1988. Before the disposal of the C.R.P., the petitioners herein seem to have filed R.C.O.P. No. 101 of 1987 on 24-7-1987 for eviction of the tenant under Ss. 10(2), 10(3)(a)(iii) and 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as 'the Act'). That R.C.O.P. was dismissed after the dismissal of the C.R.P. 2076 of 1983. Against the dismissal of R.C.O.P. No. 101 of 1987, it is stated, an appeal is pending. While so, taking advantage of the dismissal of C.R.P. No. 2076 of 1983, the petitioners filed E.P.3 of 1989 to execute the order of eviction passed in R.C.O.P. No. 90 of 1976 confirmed in C.R.P. No. 2076 of 1983. That execution petition was resisted inter alia contending that inasmuch as the petitioners herein (purchasers) having not taken steps to come on record in C.R.P. No. 2076 of 1983 and prosecute the matter cannot take advantage of the order in C.R.P. and seek execution of the same. In support of that, they placed reliance on a decision in Syed Shafee v. S. Asmath Basha reported in (1988) 102 Mad LW 261. The executing court, accepting the objection taken by the tenant, dismissed the E.P. as not maintainable. Hence the present civil revision petition.

3. Mr. S. Jagadeesan, learned counsel appearing for the petitioners, submitted that the executing court went wrong in applying the ratio in (1988) 102 Mad LW 261 (supra) as the facts are entirely different. According to Mr. S. Jagadeesan, the tenant, notwithstanding the non-appearance of the original owner in the C.R.P., took a chance by arguing the C.R.P. on merits and having got a decision adverse against him cannot now be heard to say that the order in the C.R.P. is not executable by the petitioners who are purchasers of the suit premises. He also submitted that the purchasers of the subject matter of the suit property can apply for execution of the decree without a separate assignment of the decree. In support of that, he placed reliance on a decision of this court in Ganasundaram v. Murugesa Naicker reported in 1989 AIR(Madras) 343. Again, placing reliance on a judgment in M. A. Abdul Rahiman, Abdul Rahim v. A. P. Abdulla reported in (1967) 80 Mad LW 54 (SN)(1), the learned counsel submitted that the execution petition filed by the purchaser is maintainable. Again he relied on another judgment in Sunavar Basha v. Narayanan reported in 1961