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PETITIONER: N.A.MUNAVAR HUSSAIN SAHIB(DEAD) BY L.RS. & ANR.

       Vs.

RESPONDENT: E.R.NARAYANAN (DEAD) & ORS.

DATE OF JUDGMENT11/07/1995

BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) MANOHAR SUJATA V. (J)

CITATION:  1995 AIR 2157            1995 SCC  (4) 746  JT 1995 (6)   177        1995 SCALE  (4)368

ACT:

HEADNOTE:

JUDGMENT:                       THE 11TH DAY OF JULY, 1995 Present:           Hon’ble Mr. Justice S.C. Agrawal           Hon’ble Mrs. Justice Sujata V.Manohar Mr.A.T.M.Sampath, Mr. V. Balaji, and Mr. G.Rajendran, Advs. for the Appellants. Mr.R.Sundravardan, Sr. Adv. Mrs. Asha Nair, Mr.C. Balasubramaniam and Mr. K. Ram Kumar, Advs. with him for the Respondents. Mr.P.N.Ramalingam, Adv. for the Respondent No. 3.                            J U D G M E N T The following Judgment of the Court was delivered:                     IN THE SUPREME COURT OF INDIA                      CIVIL APPELLATE JURISDICTION                  CIVIL APPEAL NOS.10618-10619 OF 1983 N.A. Munavar Hussain                  ....Appellants Shib (Dead) by LR & Anr. Versus E.R. Narayanan (Dead)                 ....Respondents & Ors.                            J U D G M E N T S.C. Agrawal, J.:      These apeals  from the  Common Judgment  of the  Madras High Court  dated June  17, 1983 in A.S. No. 529 of 1982 and S.A. No.  987 of 1983, raise the question whether the decree passed in  a suit for ejectment filed by appellant No. 1 has become inexecutable  and the  said  suit  is  liable  to  be dismissed by  virtue of  the provisions  of section 4 (4) of the Madras  City Tenants’  Protection Act, 1921 (hereinafter referred to as the Act).      The appellants  are  the  descenderts  of  Abdul  Kader Sahib. In 1917, Abdul Kader Sahib gave a vacant plot of land on West  Masi Street  in Madurai  Town on  lease to Ramaswmi Konar. The said lease permitted construction to be raised on

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the plot.  Ramaswami Konar built a theatre on the said plot. It  was   earlier  known   as  ’Chandra   Talkies’  and  was subsequently named as ’Shanti Theatre’. On February 23, 1935 a fresh  lease was  granted in  favour of Ramaswami Konar by Abdul Kader  Sahib for a period of 11 years. After the death of Ramaswami  Konar, there  was partition  in the family and the  leasehold   rights  over   the  vacant   land  and  the superstructure put  up thereon came to the share of his son, Narayanan, respondent  No.1. On  March 12,  1948, respondent No.1 sold  the leasehold  rights in  the  site  as  well  as superstructure in  favour of  Bharatha Muthu Thevar, who was the manager  of the  joint family  consisting of himself and his  brother   Veerabhadra  Thevar   with  an  agreement  to repurchase one  half of the leasehold rights in the site and the theatre.  On November 28, 1953 Bharatha Muthu Thevar and his brother  Veerabhadra Thevar reconveyed half share in the theatre and  in  the  leasehold  rights  over  the  land  to respondent No.  1. In  1954  appellant  No.1  filed  a  suit (O.S.No.15 of 1954) in the Court of the Subordinate Judge of Madurai, against  respondent  No.1  (who  was  impleaded  as Defendant No.  1), and  Bharatha Muthu  Thevar,  Veerabhadra Thevar, impleaded  as Defendants  Nos. 2  and 3,  and others including N.A.Ghulam  Khalilluah Sahib,  Defendant No.6, for recovery of  possession of  the Vacant site after removal of superstructure and for a mandatory injunction for removal of structure as  well as for damages for use and occupation and for other  reliefs. The said suit proceeded ex parte against Defendants Nos.  4 and  5. In the said suit a compromise was arrived at between appellant No. 1 and defendants Nos. 1, 2, 3 and  6 and  in terms  of the  said compromise a decree was passed on  January 10, 1955 whereunder defendants Nos. 1, 2, 3 and  5 agreed  to  deliver  the  possession  of  the  suit properties after  removing the  superstructure on item No.1, to the  plaintiff and defendant No. 6 on or before March 12, 1958 and  further agreed that if defendant Nos. 1 to 3 and 5 fail to  deliver possession  as aforesaid  the plaintiff and defendant No.6 would be at liberty to take possession of the suit properties  in execution  of the decree after March 12, 1958 and  in case  the plaintiff  or defendant  No.6 has  to remove the  superstructure, they  shall  be  at  liberty  to remove  them   and  realise   costs  of  such  removal  from defendants Nos. 1, 2, 3 and 5.      The Act  was enacted  in  1922  with  a  view  to  give protection to  certain classes of tenants. Originally it was confined in  its application  to the  city of Madras, but by Tamil Nadu  Act XIX  of 1955,  the Act  was amended  and its protection was  extended to  tenants in  municipal towns  to which the  provisions were  made  applicable  by  the  State Government by  notification under sub-section (2) of section 1. In  exercise of  the said powers, the Act was extended to Madurai on September 12, 1955.      After  the  passing  of  the  compromise  decree  dated January 10,  1955 Veerbhadra  Thevar, on  December 19, 1956, transferred his  1/4th share in the leasehold rights and the superstructure   in   favour   of   S.S.Sundaram   Chettiar, respondent No.2 herein.      Since   the    defendants   failed    to   remove   the superstructure and  handover vacant  possession as  per  the terms of the compromise decree, the appellant and N.A.Ghulam Khalilulla Sahib  defendant No. 6 in the suit filed E.P. No. 90 of  1958 in  the court  of the Subordinate Judge, Madurai for execution  of the  said decree  dated January  10,  1955 passed in O.S.No. 15 of 1954. In the said execution petition respondent   No.1    filed   application   E.A.   No.467/58, Bharatnamuthu Thevar  filed E.A.No.486/58 and respondent No.

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2 filed E.A.No.713/58 whereby the said applicants sought the benefit of  the provisions  of the  Act and  prayed that the market value  of the  site may  be fixed and the same may be directed to  be conveyed to them. It was also prayed that in any  case  the  decree-holder  was  no  longer  entitled  to demomish the  building at  his cost  or of the applicants in spite of  the decree and that the decree holder was bound to pay compensation  for the building put up by the applicants. During the  pendency of the said applications N.A. petitions Gulam Khalilullah Sahib died and appellant No. 2 was brought on record  as his  legal representative  and Bharatha  Muthu Thevar  also   died  during   the  pendency   of  the   said applications and  respondent Nos.  4 to  6 were  brought  on record as  his legal  representatives. E.A. Nos.467, 486 and 713 of  1958 referred  to above  were  disposed  of  by  the executing court  by a common order dated September 14, 1964. It was  held that the applications were barred by limitation as the  defendants-tenants did  not apply  within one  month from the  date the  Act, as  amended by Act XIX of 1955, was extended to  the city  of Madurai,  but applied only in 1958 after the  expiry of three years’time and therefore the said applications could  not be  allowed in  respect of  the said property under  section 9  of the  Act. The executing court, however, held that it is admitted that tenant had put costly structure on  the property  and that  the decree-holder must pay  reasonable  value  for  the  said  superstructure.  The executing court,  therefore, directed that a fresh valuation may be  made by  the Commissioner  to be  appointed  by  the court. With  these directions  E.A.Nos. 467, 486, and 713 of 1958 were  dismissed as  barred by limitation. In accordance with  the  said  direction  contained  in  the  order  dated September 14, 1964 a Commissioner was appointed who assessed the value  of  the  superstructure  at  Rs.  88,  940/-.  On September 29,  1970  a  joint  memo  was  submitted  by  the appellants and  respondent No.1, whereby a joint endorsement was made by appellants and respondent No.1 that the value of Rs. 88,940/- may be adopted and that six months’ time may be granted for the payment of the amount to the decree-holders. On  the   strength  of   the  said   joint  endorsement  the Subordinate Judge granted six months time for depositing the sum of  Rs. 88,940/-.  The execution  petition was proceeded ex-parte against the other judgment-debtors. The said amount of Rs.  88,940/- was  not deposited by the appellants within the period  of six months and an application (E.A.No.201/71) was submitted  on  behalf  of  the  appellants  for  further extension of time for depositing the said amount. Respondent No.  1   filed  a   counter  opposing  the  grant  of  time. Subsequently on  July  31,  1972  a  joint  endorsement  was submitted by  parties and  time for  deposit was extended by three months  from July  31, 1972.  The appellants deposited the amount  of Rs. 88,940/- on September 29, 1972 within the period of  three months  prescribed by  order dated July 31, 1972.      One Mangyakarsi  Achi, respondent  No.  7  herein,  had instituted a  suit (O.S.No.72/61)  in the  Sub. Judge  court Madurai against  respondent No.  2 for  recovery of  certain amount due  to her  from respondent  No.2 on  the  basis  of mortgage wherein final decree had been passed and even after the sale  of the mortgaged property the decree was not fully satisfied. In  the said  suit  respondent  no.  2  had  been appointed as  Receiver of  the Ashok  Theatre the  mortgaged property, and  Respondent No.  2 failed  to deposit in court the amounts  collected by  him as  receiver. Respondent No.7 filed in  application (I.A.171/72) under Order 40 Rule 4 CPC in the  said suit  (O.S. 72/61)  in the court of Subordinate

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Judge, Ramanathapuram, for attachment of 1/4th share and the rights of  respondent No.2  in Shanthi  Theatre. On the said application an  order was  passed for  attachment  of  1/4th share of  respondent No.2  in Shanthi Theatre. on August 21, 1972 and  in pursuance  of the  said  order  attachment  was effected on  September 17,  1972. Since  the said attachment order  was   passed  ex-parte   it  was  set  aside  on  the application submitted  by respondent  No.2. On  February 27, 1973 a  fresh order was passed for attachment of 1/4th share of respondent  No.2 in  Shanthi Theatre  and in pursuance of the said  order the  attachment was  effected on  March  25, 1973. The appellants filed a claim petition (I.A. No. 527 of 1973) against  the said  attachment on  the ground that they had become owner of the superstructure in Shanthi Theatre on the  date   of  attachment  by  reason  of  the  deposit  of Rs.88,940/- made  by them  into the  court pursuant  to  the order dated July 31, 1972 in E.P.No.90 of 1958, in O.S.No.15 of 1954  and that  respondent No.2 did not have any interest therein on  the date  of attachment. The said claim petition filed by  the  appellants  was  allowed  and  the  order  of attachment in  respect of  1/4th share of respondent No.2 in Shanthi Theatre  was set  aside by  order dated May 2, 1975, Thereupon respondent  No.7 filed  a suit (O.S.No.92 of 1976) agaisnst appellants  and respondent  No.3 for  setting aside the  said  order  dated  May  2,  1975.  The  said  suit  of respondent  No.   7  was   decreed  by  the  1st  Additional Subordinate Judge,  Madurai by  judgment dated  September 7, 1976 on  the ground  that in view of section 4(4) of the Act only three  months’ time could be granted for depositing the sum of  Rs.88,940/- towards  cost of  superstructure and the said amount  had to  be deposited  on or before December 29, 1970 and since the appellants had failed to deposit the said amount within  that date,  section 4(4) of the Act came into play immediately  and suit  O.S.No.15/54 stood automatically dismissed and  after December  29, 1970  there was no decree for possession  in favour  of the  appellants and  that they continue to  be the  owners of  the vacant  site  alone  and respondent No.2  and others  continue to  be owners  of  the superstructure and  that respondent No.2 had undivided 1/4th share in  the superstructure.  The appeal  (A.S.No.  292  of 1978) filed  by the appellants against the said judgment and decree in  O.S.No. 92  of 76  was dismissed  by the District Judge Madurai  by judgment  and decree  dated May  9,  1979. Second appeal  No. 987  of 82 was filed by the appellants in the High  Court against  the said  decree  of  the  District Judge.      After O.S.No.92  of 1976  filed by respondent No. 7 was decred by  the trial  court, respondent  No. 1  filed a suit (O.S.No.671 of  1970 in  the Court  of Subordinate  Judge of Madurai against  the appellants as well as respondent Nos. 2 to 8  wherein Respondent  No. 1 sought a declaration that he is entitled  to half  share in  the superstructure including the leasehold  rights  over  the  site  and  also  sought  a permanent  injunction   restraining  the   appellants   from interfering with  the common possession and enjoyment of the superstructure  by  Respondents  Nos.  1,  2  and  4  to  6. Respondents also  sought other  reliefs  against  the  other defendants in  the said  suit.  In  the  said  suit  it  was submitted that  the decree  in O.S. No. 15/54 was an invalio decree and payment of Rs. 88,940/- beyond the statutory time fixed under  the Act  was illegal  and could  not  therefore confer any  right on  the appellants and that the respondent No.1 was still entitled to half share in the superstructure, machinery etc.  as also  in the leasehold right of the site. The said  suit was  decreed in favour of respondent No. 1 by

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the III  Additional Sub-Judge,  Madurai  by  Judgment  dated November 16,  1981 and  respondent No.1 was held entitled to half  share   in  the   leasehold  right   as  well  as  the superstructure. The  said judgment was based on the judgment of the trial court in O.S.No. 92 of 1976 filed by Respondent No. 7  which had  been affiremed  in A.S.292 of 1973 and the said judgment  was held  to operate  as res  judicate.  A.S. No.529 of  82 was  filed by the appellants in the High Court against the  said judgment  and decree of the III Additional Sub-Judge.      A.S. No.  529 of 1982 and S.A.No. 987 of 1983 were both disposed of  by the High Court by the judgment under appeal. The High  Court  was  of  the  view  that  the  order  dated September 29,1970 passed by the executing court in E.P.No.90 of 1958  was really  an order  passed by the executing court under Section  4(1) of  the Act  read with Section 10(2) and must strictly  conform to  the requirements  of Section 4(1) and, therefore,  the amount  of Rs.88,940/- should have been deposited within  three months  from the  date of passing of the order  dated September  29, 1970  and since  it was  not deposited within  the said  period of three months, the suit (O.S.No. 15/54) stood dismissed by virtue of section 4(4) of the Act.  The High  Court has rejected the contentions urged on behalf  of the  appellants that the provisions of the Act were not  applicable and  the direction regarding deposit of Rs. 88,940/-  was dehors  the provisions of the Act. Feeling aggrieved by  the  said  Judgment  of  the  High  Court  the appellants have filed these appeals.      Thus the question that falls for consideration in these appeals is whether the order dated September 29, 1970 passed by the  executing court  in E.P.No.  90 of 1958, whereby six months time  was given  to the decree-holders to deposit the sum of  Rs.88,940/-, was  an order passed under section 4(1) of the  Act read  with Section  10(2) or was an order passed dehors the  provisions of the Act. It would be convenient at this stage  to set out the relevant provisions of the Act as they stood on September 29, 1970 :           "Section 3. Payment of Compensation      on  ejectment.  Every  tenant  shall  on      ejectment be  entitled  to  be  paid  as      compensation the  value of any building,      which may  have been  erected by him, by      any of  his predecessors in interest, or      by any  person not  in occupation at the      time of  the ejectment who derived title      from  either  of  them,  and  for  which      compensation has  not already been paid.      A tenant who is entitled to compensation      for the value of any building shall also      be paid  the value  of trees  which  may      have been planted by him on the land and      of any  improvements which may have been      made by him."      "Section 4(1).  Disposal  of  suits  for      ejectment.  In   a  suit  for  ejectment      against a  tenant in  which the landlord      succeeds, the  court shall ascertain the      amount of  compensation, if any, payable      under section  3 and  the decree  in the      suit shall  declare the  amount so found      due and  direct that,  on payment by the      landlord into court, within three months      from the  date of  the  decree,  of  the      amount so  found due,  the tenant  shall      put the  landlord into  possesion of the

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    land  with   the  building   and   trees      thereon.      (2) Omitted.      (3) Omitted.      (4) If  the amount found due is not paid      into court  within three months from the      date of the decree under sub-section (1)      or  of  the  interim  order  under  sub-      section (2),  or if  no  application  is      made  under   section  6,  the  suit  or      application, as  the case  may be, shall      stand dismissed,  and the landlord shall      not be  entitled to  institute  a  fresh      suit for  ejectment, or  present a fresh      application for  recovery of  possession      for a period of five years from the date      of such dismissal."      "Section 9(1)  (a). Application to Court      for directnig the landlord to sell land.      Any   tenant    who   is   entitled   to      compensation under section 3 and against      whom  a   suit  in  ejectment  has  been      instituted or  proceeding under  section      41 of  the Presidency Small Cause Courts      Act 1882,  taken by  the landlord,  may,      within one  month of  the  date  of  the      Madras    City    tenants’    Protection      (Amendment) Act, 1955, coming into force      or of  the date  with effect  from which      this Act  is extended  to the  municipal      town or  village in  which the  land  is      situate, or  within one  month after the      service on  him of summons, apply to the      court for  an order  that  the  landlord      shall be directed to sell for a price to      be fixed by the court, the whole or part      of the  extent of  land specified in the      application.     **               **               **      (b) On such application, the court shall      first decide  the minimum  extent of the      land which  may  be  necessary  for  the      convenient enjoyment  by the tenant. The      court shall  then fix  the price  of the      minimum extent  of the  land decided  as      aforesaid, or  of the extent of the land      specified  in   the  application   under      clause (a); whichever is less. The price      aforesaid shall  be the  average  market      value of  the  three  years  immediately      preceding the  date of  the  order.  The      court shall  order that  within a period      to be determined by the court, not being      less than three months and not more than      three years  from the date of the order,      the  tenant  shall  pay  into  court  or      otherwise as directed the price so fixed      in  one  or  more  instalments  with  or      without interest.      (2) (Omitted)      (3) (Omitted)"      "Section 10(1).  Sections 4,  5, 6, 8, 9      and  9-A   shall  apply   to  suits   in      ejectment and applications under section      41 of  the Presidency Small Cause Courts

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    Act 1882,  which are pending or in which      decrees for  ejectment or  order  sunder      section 43 of the Presidency Small Cause      Courts Act,  1882, have  been passed,but      have not  been executed  in the  City of      Madras    City    Tenants’    Protection      (Amendment)  Act,   1955,  and   in  any      municipal town  or village,  before  the      date with  effect from which this Act is      extended to such twon or village.      (2)  In   suits  in  which  decrees  for      ejectment have  been passed,  the amount      of  compensation   due  shall   on   the      application of the tenant be ascertained      in execution  and a  fresh decree passed      in accordance with section 4.      (3) (Omitted)."      From the  aforesaid provisions  it  would  appear  that under Section  3, on  ejectment, a  tenant is entitled to be paid as  compensation the  value of  any building  which may have been erected by him or by his      Predecessor  in  interest  or  by  any  person  not  in occupation at  the time  of ejectment who derived title from either of  them and  for which  compensation has not already been paid.  Section 4  makes provision  for giving effect to the said  right while  passing the  decree in  the suit  for ejectment. Section  9 enables  a tenant  against whom a suit for ejectment has been instituted to buy the whole or a part of the land on payment of the price determined by the court. Section 10  deals with  a  sitsuation  where  the  suit  for ejectment was  pending or where the decree for ejectment has already been  passed, but  has not been executed on the date when the  provisions of  the Act  became applicable. By sub- section (1)  of Section  10 the provisions of sections 4, 5, 7, 8,  9 and  9-A have  been made  applicable to such suits. Sub-section (2)  of Section 10 enables the tenant to move an application for  ascertainment of the amount of compensation and passing  of a  fresh decree in accordance with Section 4 in suits in which decrees for ejectment have been passed.      In  the   instant  case   we  are  concerned  with  the provisions of  section 10 because on September 12, 1955 when the  Act  was  extended  to  Madurai  town  the  decree  for ejectment had  already been passed in Suit O.S.No.15 of 1954 and the said decree had not been executed. By virtue of sub- section (1)  of section  10, sections  4, 5, 6, 8, 9 and 9-A became  applicable  to  such  proceedings.  Section  3  was, however, not made applicable. As a result the tenants, could file an  application under Section 9(1) (a) within one month from September 12, 1955, the date with effect from which the Act was extended to Madurai town, for an order directing the landlord to  sell the  whole or  part of  the extent of land specified in the application at the price to be fixed by the court. Under sub-section (2) of section 10 the tenants could submit an  application for  ascertainment of  the amount  of compensation due  and in  the event  of such  an application being filed  the procedure  laid down  under section  4  was required to  be followed and a fresh decree had to be passed under section 4 of the Act.      In  V.K.A.  Ranganatha  Konar  v.  The  Tiruchirappalli Municipal Council,  by its Commissioner, & Anr. (1965) 2 SCR 645, during  the pendency  of the suit for eviction filed by the landlord,  the Act was extended to the Municipal Town of Tiruchirappalli. The  trial court  valued  the  improvements made by the tenant and made a declaration under section 4(1) of the  Act. On  the basis  of the said valuation the decree

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for ejectment was passed directing the defendants to put the plaintiff in possession of the suit properties on payment of the amount determined as compensation for the superstructure belonging to  the first  defendant. The  decree did  not  in terms direct  the landlord  to pay  the said  amount  within three months  of its  date. The said payment was not made by the landlord  within three  months  from  the  date  of  the decree. After  the expiry of period of three months from the date of  decree, the  tenant filed  an aplication before the trial court submitting that since the landlord had failed to deposit the  amount of  compensation within  the  period  of three months  from the  date of  the decree,  the  suit  was liable to be dismissed under section 4(4) of the Act. On the said application  the trial court passed an order dismissing the suit  under section  4(4). The  High Court  reversed the said order  on the  view that  since the original decree did not  give   a  specific   direction  that   the  amount   of compensation  should   be  paid  within  three  months,  the provisions of  section 4(4)  could not  be invoked until the decree was  suitably amended. Reversing the said view of the High Court  and restoring the order of the trial court, this Court has held :           "We  are  inclined  to  think  that      having regard  to  the  mandatory  terms      used in  s. 4(4)  it would  be illogical      and  unreasonable   to  suggest  that  a      defective  decree   like   the   present      enables the  landlord to  circumvent the      provisions of  s.4(4). The applicability      of s.4(4)  cannot be  repelled merely on      the ground  that the decree passed under      s. 4(1)  does not  specify the period of      three months  within  which  the  amount      found  due   has  to  be  paid.  In  our      opinion, the logical way to reconcile s.      4(1) and  s.4(4) would  be to  treat the      provision  prescribed   by  s.  4(4)  as      mandatory and  paramount  and  read  the      relevant portion of s. 4(1) accordingly.      That is  why even if the decree does not      mention that  the amount  has to be paid      within  three   months,  the  landlord’s      obligation to  make the  payment  within      three months  is still enforceable under      s.  4(4),  Otherwise  defective  decrees      would deprive the tenants of the benefit      intended to  be conferred  on them by s.      4(4). "(p.652)      The High  Court has  relied upon  the said  decision to hold that  since the  order dated  September  29,  1970  was passed under  section 4(1)  of the Act, the court could only prescribe three  months’time for  depositing the  amount  of compensation in  view of  section 4(4) of the Act and fixing of six  months time  for such  deposit in the said order was therefore, not in consonance with the statutory requirements of section  4 of  the Act  and  the  said  order  should  be construed as  having fixed  three months’time  for the  said deposit and  since the  deposit was  not made  within  three months, the  said suit stood dismissed under section 4(4) of the Act on the date of expiry of the period of three months’ from the  date of  passing of  the order dated September 29, 1970.      Shri  A.T.M.Sampath,   the  learned   counsel  for  the appellants, has  urged that  the order  dated September  29, 1970 was  not an order passed under section 4 (1) of the Act

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but was  an order  passed dehors  the provisions of the Act. Shri Sampath  has pointed  out that  the  said  order  dated September 29,  1970 is  based on  the  earlier  order  dated September 14, 1964 whereby the executing court had dismissed all the  three applications  (E.A.Nos. 467,  486, and 713 of 1958) filed by Respondent No. 1 and Bharathamuthu Thevar and Respondent No.  2 as  being barred  by limitation but having regard  to   the  fact  that  the  tenants  had  put  costly structures on  the land  the  landlord  decree-holders  were directed   to    pay   reasonable   value   for   the   said superstructure. According  to Shri Sampath this direction in the order  dated September  12, 1964  was not  given by  the court under  any  of  the  provisions  of  the  Act  but  on equitable  considerations  and,  therefore,  the  subsequent order dated  September 29,  1970 was  an order passed dehors the  provisions   of  the   Act.  In  support  of  the  said submissions Shri Sampath has placed reliance on the decision of a  learned judge  of the Madras High Court in G. Muthuvel Pillai v.  Hazarath Syed  Sha Mian  Sakkab  Kadhiri  Thakal. Thanjavur by  its Trustee  and Ors., 1976 MLJ 332, which has been affirmed  by this Court in G.Muthuvelu Pillai (dead) by Lrs. V. Hazarath Syed Shah Mian Sakkaf Sahib Khadiri Thaikal (dead) by Lrs. and Ors., 1993 Supp.(1) SCC 413. Shri Sampath has also  urged that  the order dated September 29, 1970 was passed  on  the  basis  of  the  joint  endorsement  by  the appellants and respondent No. 1 and in view of the fact that on the  basis of subsequent joint endorsement dated July 31, 1972 which  was signed  by appellants  as well as respondent Nos. 1  and 2  the time  for payment  was extended  by three months by  order dated  July 31, 1972, it is not open to the respondents to  assail the validity of the said order on the basis of the provisions of section 4 of the Act.      Shri  R.  Sundaravardan,  the  learned  Senior  counsel appearing for  respondent No.1,  has,  on  the  other  hand, submitted that  the High Court was right in holding that the order dated September 29, 1970 was passed under section 4(1) of the  Act and  in view  of section  4(4) of  the Act,  the appellants were  required  to  deposit  the  amount  of  Rs. 88,940/- compensation  within three  months from the date of the said  order and  since they  failed to  do so,  the suit (O.S.No.15 of  1954) filed by the appellants stood dismissed on the  expiry of the period of three months on December 29, 1970 by  virtue of  Section 4(4)  of the  Act.  The  learned counsel  has  contended  that  while  an  application  under section 9  is required to be submitted within one month from the date  of application of the Act, no period of limitation is prescribed for moving an application for determination of compensation under  section 10(2)  of the  Act and  that the applications (E.A.Nos.  467, 486  and 713  of 1958) filed by Respondent No.1  and Bharathamuthu Thevar and Respondent No. 2, insofar  as they  sought a direction regarding payment of compensation for  the superstructure, could not be dismissed as being  barred by limitation. the learned counsel has also urged that  the fact that the order dated September 29, 1970 was passed  on the basis of a joint endorsement submitted by the  appellants   and  respondent   No.1   cannot   preclude respondent No.1 from assailing the correctness of said order on the  ground that  it was  passed in  contravention of the provisions of  section 4 of the Act. The learned counsel has placed reliance  on the  provisions of Section 12 of the Act which provides that nothing in any contract made by a tenant shall take away or limit his rights under the Act.      In the  order dated September 14, 1964 whereby E.A.Nos, 467, 486  and 713  of 1958  were dismissed,  the Subordinate Judge, after  referring to  the decisions of the Madras High

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Court, has observed:           "Bearing these  principles in mind,      I have  to hold  that in  as much as the      tenants did  not apply  within one month      from the  date of  Madras  City  Tenants      Protection  Amended   Act  XIX  of  1955      extended to  the City  of  Madurai,  but      only applied in 1958 after the expiry of      3 years  time. The applications E.A.Nos.      467, 486  and 713  of 1958  are  out  of      time." The Subordirate  Judge  rejected  the  contention  urged  on behalf of  the tenants  and the  other respondents  that the period of  one month  should be  counted from  the  date  of service of  the notice  in the  execution petition  and  has held:           "I hold  all E.As.  are clearly out      of time and no E.A. Nos. 467,486 and 713      of 1958  cannot be allowed in respect of      the claim  to sell  the  property  under      section 9  of the  Madras  City  Tenants      Protection Act,  and these  applications      have to  be dismissed in toto as regards      the prayer, in them, to fix their market      value.           E.A.Nos. 467,  486 and  713 of 1958      are  hereby   dismissed  as   barred  by      limitation."      Even though  the applications  were dismissed as barred by limitation  the Subordinate  Judge  has  held  that  "the decree   holder   must   pay   reasonable   value   of   the superstructure" after observing:           "Further  it   is   admitted   that      possession had  passed to the tenant and      that  the   tenant  has  put  up  costly      structures on the property. Therefore, I      do not  see any  ground  to  refuse  the      value of improvements."      The  Subordinate   Judge   permitted   the   applicants (Defendants Nos.  1, 2 and 7) to take out a fresh commission for assessing the value of the buildings through a competent Commissioner.  In   pursuance  of  the  said  direction  the Commissioner was  appointed who submitted a report assessing the value  of the  superstructure at  Rs.88,940/-. The  said report was accepted by the Subordinate Judge on the basis of a joint  endorsement made  by the  appellants and respondent No. 1  and by order dated September 29, 1990 six months time was given  to the  appellants to  deposit the said amount of Rs. 88,940/-.      These directions  regarding payment of reasonable value of the  superstructure  and  the  assessment  of  the  value through a  Commissioner cannot  be regarded  as having  been given under the provisions of the Act since the applications submitted by  the defendants  were dismissed  as  barred  by limitation. These  directions here  to be regarded as having been given on equitable considerations.      In G.Muthuvelu  Pillai (supra)  a compromise decree had been passed  in a  suit for  vacant possession  of leasehold property on  June 28, 1963 whereunder the superstructure put up on  the land was to be purchased by the plaintiff for Rs. 6,000/-. The  provisions of  the Act  were not applicable on the date  of the  passing of the decree and were extended to Thanjavur  by  notification  dated  November  7,  1964.  The application submitted  by the  defendant under  Section 9 of the Act  was dismissed  as it was filed beyond the period of

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limitation one  month. The  High Court,  in  second  appeal, increased the  sale consideration  fixed by  the trial court for the  superstructure from  Rs. 6000/-  to Rs. 8000/-. The plaintiff sought  delivery of  possession in proceedings for execution of  the decree.  Relying upon  the  provisions  of section 3  of the  Amending Act  16, 1964,  which  was  made applicable to  Thanjavur  on  November  7,  1964  and  which provided for abatement of certain pending proceedings it was urged on  behalf of  the defendant  that the proceedings had abated. Rejecting  the said  contention it  was held  by the High Court  (S.Mohan J., as the learned Judge then was) that it was  a case  of simple  purchase of superstructure dehors the Act  and it could not be contended that any rights still remained surviving  which abated  under  section  3  of  the Amending Act 16 of 1964. The said judgment of the High Court has  been   affirmed  in   appeal  by  this  Court.  [See  : G.Muthuvelu Pillai  (supra)]. This  case indicates  that  an order regarding  payment of  price  for  the  superstructure could be passed dehors the Act.      We are unable to construe the order dated September 14, 1964 and  the subsequent  order dated  September 29, 1970 as orders passed under Section 4 (1) of the Act. An order under Section 4  could be  passed only  on  an  application  under section 10(2)  of the  Act. The  only applications that were submitted by  the respondent-tenants  were E.A.Nos. 467, 486 and 713  of  1958.  The  said  applications  were  composite applications under ections 9 and 10(2) of the Act. They were all dismissed  as barred  by limitation.  It is true that no period of  limitation has been prescribed for an application under Section  10(2) of  the Act, but the executing court by order dated September 14, 1964 dismissed the applications in toto as  barred by  limitation. The  said order  has  become final. It  is not  open to  the respondents  to  assail  the correctness of  the said  order dated  September 14, 1970 in these proceedings.  The orders  dated September 14, 1964 and September  29,  1970  regarding  payment  of  price  of  the supperstructure by the appellants to the respondents cannot, therefore, be held to be orders passed under section 4(1) of the Act.  The said  orders can  only be treated to be orders passed dehors the provisions of the Act.      The High  Court has  laid emphasis  on  the  provisions contained in  section 3 of the Act and has observed that the said provisions cast an obligation on the court to determine the amount  of compensation  under section  4 in  respect of superstructure. The  High Court has, however, failed to note that under  section 10(1)  the provisions  of Section 3 have not been  made applicable  to a  suit that was pending or in which decree for ejectment had been passed, but had not been executed. In respect of suits in which decrees for ejectment have been  passed provision  is made  in Section  10(2)  for ascertainment in execution of the amount of compensation due on the  application of  the tenant  and for  passing a fresh decree in  accordance with  section 4.  This means  that the procedure laid  down under section 4 has to be followed only when an  application is  filed by  the tenant  under Section 10(2) of  the Act  and in the absence of such an application the provisions of section 4 do not come into play. Since the only  application   that  was   submitted  by   the  tenant- respondents  was   dismissed  as  barred  by  limitation  no direction regarding  fixation of  price could be made by the court under  Section 4(1)  of  the  Act  and  the  direction regarding  payment   of  price  by  the  decree-holders  and determination of the value cannot be regarded as a direction given under  section 4(1)  of  the  Act.  Section  4(4)  is, therefore, not  attracted and  the suit (O.S.No. 15 of 1954)

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could not  be held  to have  been dismissed by virtue of the provisions contained  in Section  4(4) of the Act on account of non-payment  of the price of the of the superstructure by the appellants within a period of three months from the date of the order dated September 29, 1970.      In that  view of  the matter  we  do  not  consider  it necessary to  go into  the other  contention urged  by  Shri Sampath that  the deposit  of the sum of Rs. 88,940/- by the appellants as  per the  directions given  in the order dated September 29,1970, was validly made and that the respondents were estopped  from  assailing  the  validity  of  the  said deposit.      In the  result the  appeals are  allowed, the  Judgment dated June  17, 1983  passed by  the High Court of Madras in S.A.No. 987  of 1983  and A.S. No. 529 of 1982, the judgment dated September  7, 1977  passed by  1st  Addl.  Subordinate Judge in  O.S.No.92/78, judgment dated May 9, 1979 passed by the District  Judge, Madurai  in A.S.No.292/78  as  well  as judgment dated  November 16,  1981 passed by the Subordinate Judge,Madurai   in   O.S.No.671/78   are   set   aside   and O.S.No.92/76 and  O.S.No.671/78 filed by respondent No.1 are dismissed. The appellants will be entitled to their costs.