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1998(2) Supreme 33
Supreme Court of India
(From Madras High Court)
S. Saghir Ahmad and M. Jagannadha Rao, JJ.
V. Uthirapathi -Petitioner
versus
Ashrab Ali & Ors. -Respondents
Special Leave Petition (C) No..... 1998 (CC 1802)
Decided on 18-2-1998
Counsel for the Parties :
For the Petitioner : M.A. Chinnasamy, Advocate.
Held : If after the filing of an execution petition in time, the decree holder dies and his legal representatives do not come on record - or the judgment debtor dies and his legal representatives are not brought on record, then there is no abatement of the execution petition. If there is no abatement, the position in the eye of law is that the execution petition remains pending on the file of the execution Court. If it remains pending and if no time limit is prescribed to bring the legal representatives on record in execution proceedings, it is open in case of death of the decree holder, for his legal representative to come on record at any time. The execution application cannot even be dismissed for default behind the back of the decree holder’s legal representatives. In case of death of the judment debtor, the decree holder could file an application to bring the legal representatives of the judgment debtor on record, at any time. Of course, in case of death of judgment-debtor, the Court can fix a reasonable time for the said purpose and if the decree holder does not file an application for the aforesaid purpose, the Court can dismiss the execution petition for default. But in any event the execution petition cannot be dismissed as abated. Alternatively, it is also open to the decree holder’s legal representatives, to file a fresh execution petition in case of death of the decree holder; OR, in case of death of the judgment debtor, the decree holder can file a fresh execution petition impleading the legal representatives of the judgment debtor; such a fresh execution petition, if filed, is, in law, only a continuation of the pending execution petition - the one which was filed in time by the decree holder initially. This is the position under the Code of Civil Procedure. (Para 15)
Inasmuch as the words ‘as if’ have been used in Section 18, the eviction order, in our opinion, is to be deemed to be an order of a Civil Court and the execution petition has to be treated as an execution petition filed in the Civil Court for execution of an order of a Civil Court. If Section 18 were not there, the orders of eviction under Sections 10, 14, 15, 16 and 17 could not be treated as orders of a Civil Court and were to be treated only as orders passed by the Rent Controller under the Act. But, because of the fiction, they are to be treated as orders of a Civil Court. (Para 19)
If therefore “full effect” is to be given to the fiction and if the eviction orders under Sections 10, 14, 15, 16 and 17 are to be deemed to be orders of the Civil Court and if the Rent Controller is to be deemed to be a Civil Court, then the execution petition, already filed in the Rent Controller’s Court, (within the time limited for filing execution petition) in our opinion become by force of the fiction, execution petition under the Code of Civil Procedure and not under the Act. Death of decree holder or judgment debtor does not result in abatement of the execution petition. If it does not abate, it remains pending. Then what we have said in regard to the execution proceedings, under the heading ‘Powers of Civil Court’ is equally applicable to execution proceedings filed in the Rent Controller’s Court. That appears to us the logical result of the fiction. (Para 21)
The rule making authority when it fixed a period of 30 days for bringing legal representatives on record must, therefore, must be deemed to have used the words, “proceeding under the Act” as applicable to proceedings before the passing of the order of eviction and not after. We are, therefore, of the view that Rule 25 does not apply to execution proceedings. (Para 22)
Judgment
M. Jagannadha Rao, J.-We are disposing of this SLP by a reasoned order at the stage of admission, after condoning the delay. The SLP is preferred by the tenant against the order of the High Court of Madras in CRP 2272 of 1997 dated 19.9.1997 and the order dismissing the Review application No. 104 of 1997 dated 12.11.1997. The matter arises in execution proceedings under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 hereinafter called the Act).
2. The eviction proceedings under the Act were started in 1982 by the respondents’ father in RCOP 17/1982. Eviction was ordered and the said order was confirmed by the appellate authority. The decree holder filed an execution petition (within time for filing an execution petition) but later he died on 27.2.1993. In the said pending execution petition, the respondents, who are the decree holder’s legal representatives filed an interlocutory application for their impleadment as the legal representatives of the decree holder, on 26.4.1994. The petitioner-tenant contended in the execution Court that the impleadment application thus filed in the main execution petition was time - barred as it was filed beyond the period of one month specified in Rule 25 of the Rules, Rule 25 prescribes ‘the time limit for bringing the legal representatives on record in proceedings under the Act’. Accepting the said objection, the impleadment application was dismissed.
3. The applicants, in that IA filed CRP No. 2272/1997 in the High Court. By an order dated 19.9.1997, the High Court allowed the revision on the ground that under Section 18 of the Act, the Rent Controller has to execute the eviction order, “as if such order is an order of a Civil Court” and hence there was no question of limitation. The High Court relied upon a Division Bench in Subramania Pillai v. Rajakanni Nadar1, rendered before the amendment of Section 18 by Act 23/73 and on N. Ramanujam Naidu v. Panchanath Mudaliar2. Thereafter, the tenant filed a review application contending that the High Court, while allowing the revision, had not taken note of Hydro-Chains (P) Ltd. v. Mary Thomas Marattukulam3, which was confirmed by this Court in Hydro-Chains Pvt. Ltd. v. Thomas Marattukulam4. The review application was disposed of on 12.11.1997 and it was held that it was not a fit case for review under Order 47 Rule 1 CPC inasmuch as, even if the application filed by the legal representatives of the landlord was beyond one month as stipulated in Rule 25, it was conceded for the tenant that the said heirs could file an independent execution petition and, therefore, there was no point in allowing the revision, dismissing the impleadment application filed in the execution application and permitting the heirs of the landlord to file a fresh execution petition. In the result, the review application was dismissed. It is against both these orders that the SLP is filed by the tenant.
4. It is contended in this SLP that in Hydro-Chains case (supra), the High Court had considered all the previous decisions including Ramanujam Naidu’s case (supra) and made a distinction between an application for bringing on record the legal representatives during the pendency of an execution petition and an application for bringing on record the legal representatives of the landlord at the time of filing the execution petition and that Rule 25 would be attracted only to the former. It is contended that the High Court erred in thinking that there was no time limit for the legal heirs to come on record. It is stated that the Division Bench Judgment in Subramania Pillai’s case (supra) was one rendered before Section 18 of the Act was amended in 1973 by Act 23/73. It is pointed out that the principle laid down by the High Court in Hydro Chains (P) Ltd. (supra) has been accepted by this Court in Hydro Chains (supra), a case where the point arose after the amendment to Section 18 of the Act in 1973 under T.N. Act 23 of 1973, as in the ca
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