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2017 Supreme(Mad) 143
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.V. MURALIDARAN, J.
Valleesan Pillai & Ors. - Petitioners
Vs.
A/M.Thiruvaduthurai Adheenam Rep. By the Adheena Kartha Srilasri Pandara Sannadhi Thiruvaduthurai - Respondent
CRP(NPD) No. 1563 of 2011 & M.P. No. 1 of 2011 and CRP(NPD) No. 2330 of 2011 & M.P. No. 1 of 2011
Decided On : 18-01-2017
For the Respondent: Mr. K. Chandrasekaran.
Headnote:
Civil Procedure Code, 1908 – Section 47 – City Tenant Protection Act – Hindu Religious and Charitable Endowments Act, 1959 – Section 34 – Transfer of Property Act, 1882 – Compensation – Recovery of Possession – Decree Holder – Civil Revision Petition arising out of order passed by Sub-Court, Chidambaram in allowing application filed by judgment debtor for appointment of advocate commissioner to ascertain value of building with help of engineer no dispute that petitioner is the owner of the vacant site and the respondent is a tenant and the respondent contested suit by filing written statement – Ultimately suit decreed only in respect of recovery of arrears of rent and with regard to recovery of possession the suit was dismissed – Petitioner filed an appeal and the respondent filed before District Court – Held, Entertaining these types of application itself is a premium given to the wrong doer which is not permissible under law person who is occupying the property as tenant must always bear in mind that he is only a licensee to occupy and will have to handover possession in a manner know to law and particularly he has no right to invest anything on property or make construction without permission of owner does so he is taking risk knowingly and in that case there shall not be any equity or sympathy shown to him which will adversely right of lawful owner – No question or issue to be decided in executing Court with regard to value of building and the decree to be executed as it is and possession must be handover to decree holder without any condition executing Court is not right in appointing an advocate commissioner by giving a finding that value of building is to be ascertained for deciding issue in execution petition – Appeal dismissed.
This Civil Revision Petition in C.R.P. No. 1563 of 2011 is arising out of the order passed by the Sub-Court, Chidambaram E.A. No. 8 of 2006 in E.P. No. 65 of 2006 in O.S. No. 89 of 1989 dated 03.03.2011 dismissing the application filed by the judgment debtor under Section 47 of CPC.
2. This Civil Revision Petition in C.R.P. No. 2330 of 2011 is arising out of the order passed by the Sub-Court, Chidambaram in E.A.No.1 of 2008 in O.S.No.89 of 1989 dated 03.03.2011 allowing the application filed by the judgment debtor for appointment of advocate commissioner to ascertain the value of building with the help of engineer.
3. The undisputed facts leading to filing of the present Civil Revision Petitions is that the petitioner in C.R.P.No.2330 of 2011 is the plaintiff and the petitioner in C.R.P. No. 1563 of 2011 is the 1st defendant/judgment debtor in O.S.No.89 of 1989 on the file of the Sub-Court, Chidambaram filed for the relief of recovery of possession and recovery of sum of Rs.16,791.40/- and means profit as Rs.1.500/- per year and for other reliefs. For easy reference the parties, the plaintiff is referred as petitioner and the judgment debtor is referred as respondent.
4. There is no dispute that the petitioner is the owner of the vacant site and the respondent is a tenant and the respondent contested the suit by filing written statement. Ultimately the suit decreed only in respect of recovery of arrears of rent and with regard to recovery of possession the suit was dismissed. The Petitioner filed an appeal in A.S.No.114 of 1995 and the respondent filed appeal in A.S.No.46/1995 before the District Court, Cuddalore. The appeal filed by the defendant was dismissed and the appeal filed by the plaintiff was allowed on 18.08.1997 and the suit was remanded back to the Trial Court with regard to issue of recovery of possession and the application for provisions of City Tenant Protection Act.
5. As against the remand the defendant filed second appeal in S.A.No.1763 of 1997 and the plaintiff filed second appeal in S.A.No.863 of 2005 before this Hon’ble Court. The Division Bench of this Hon’ble Court set aside and remand back to the trial Court for passing orders and the orders decreed on 22.08.2005, which is extracted hereunder:-
“1. That Clause 1 of the decree of the trial court to stand.
2. That Clause 2 of the decree of the trial court too stand deleted.
3. That the following shall be added as clauses 2 to 4 to the decree of the Trial Court.
2. That the defendants do deliver to the plaintiff herein possession of the property more fully described in the schedule to the decree of the trial court.
3. That the defendant do pay the plaintiff damages at the rate of Rs.1,500/- per year from 19-07-1989 from the date of plaint till date of delivery of possession of the property more fully described in the schedule to the decree of the trial court.
4. That the determination of future means profit till date of delivery of the property more fully described in the schedule to the decree of the trial court is relegated to separate proceedings under Order 20, Rule 12 of the Code of Civil Procedure.
4. That clause 3 of the decree of the trial court to re-number as clause-5.
5. That there shall be no costs in these second appeals.”
6. Subsequently the execution petition in E.P.No.65/2006 was filed, wherein the judgment debtor filed a petition in E.A.No.8/2006 under Section 47 of CPC questioning the executability of the decree with the prayer that he is entitled to the cost of building at Rs. 30/- Lakhs or such amount as may be determined by court, together with interest at 36% per annum and as well as in the event of respondent’s failure to pay cost the E.P may be dismissed. The averments in Section 47 Petition is that he is entitled to get the value of building as per “Section 34(C)” of Hindu Religious and Charitable Endowments Act, 1959 in the event of recovering the possession.
7. Pending Section 47 application the judgment debtor filed another applicati
