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PETITIONER: V.UTHIRAPATHI

       Vs.

RESPONDENT: ASHRAB ALI & ORS.

DATE OF JUDGMENT:       18/02/1998

BENCH: S. SAGHIR AHMAD, M. JAGANNADHA RAO.

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T 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).      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  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.      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 Vs. Rajakanni Nadar  [1971 (1)  MLJ  223]  rendered  before  the amendment of  section 18  by Act  23/73 and  on N. Ramanujam Naidu  Vs.   Panchanath  Mudaliar   [1980  (1)   MLJ   232]. 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.  Vs.  Mary  Thomas

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Marattukulam [1994  (2) L.W.443] which was confirmed by this Court in Hydro-Chains Pvt.Ltd. Vs. Thomas Marattukulam [1994 (5) SCC  337]. 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 is Rule 25, it was conceded  for the  tenant that the said heirs could file and 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.      It is  contended in this SLP that in Hydro-Chains case, [1994 (2)  LW 443],  the High  Court had  considered all the previous decisions  including Ramanujam  Naidu’s case  [1971 (1) MLJ  223] 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 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  Judgement in  Subramania  Pillai’s case [1971  (1) MLJ  223] was one rendered before Section 18 of the  Act was  amended in 1973 by 23/73. It is pointed out that the  principle laid  down by  the High  Court in  Hydro Chains (P)  Ltd [1994  (2) LW 443] had been accepted by this Court in  Hydro -Chains [1994 (5) SCC 337], 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 is the case before us and that the  learned Single  Judge of  the High  Court, in  the order allowing  the revision,  erred in following Subramania Pillai’s case rendered before the 1973 amendment.      The point that arises for consideration is whether - in view of  section 18, amended in 1973 - Rule 25 introduced on 28.10.74 alongwith other Rules, was not intended to apply to execution proceedings  and whether,  in any  event, a  fresh execution petition  could  have  been  filed  by  the  legal representatives of the decree holder?      We shall briefly refer to certain provisions of the Act and Rules.  Section 2(3)  defines ‘Rent  Controller’ as  any person appointed  by the  Government,  by  notification,  to exercise the  powers of  a ‘Controller’  under the  for such area as  may  be  specified  in  the  notification.  Section 23(1)(a) enables  the government  to notify  the  ‘appellate authorities’.      "Section 18:  Execution of  orders:      (1) Every order made under sections      10. 14.15.  16 and  17 every orders      passed on  appeal under  section 23      or on  revision under  section  25,      shall   be    executed    by    the      Controller, as  if such order is an      order of  the Civil  Court and  for      this purpose,  the Controller shall      have all  the  powers  of  a  Civil      Court."      Rules  have   been  issued   in  GOMs  No.  2529  dated 28.10.1974. Rule  11 of  the  rules  deals  with  filing  of applications under  the Act for release under section 3-A or for eviction  under section 10 or for recovery of possession

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under section  12 or  14. (These sections are concerned with eviction on  separate grounds  and  do  not  concerned  with eviction on  separate grounds  and do  not concern execution proceedings). Rule  12 deals with the procedure for disposal of applications,  giving of  a hearing,  setting parties ex- parte etc.  Rule 15 deals with filing of appeals and Rule 16 with procedure  in appeals. Rule 21 deals with appearance of parties  in  person  or  through  counsel  before  the  Rent Controllers, authorised  officers or  appellate authorities. Rule 23  deals with scale of process fee. Rule 25 deals with the time  limit for  bringing the  legal representatives  on record in  ‘proceedings under  the Act’.  That rule reads as follows :      "Rule  25:  Every  application  for      making the  legal representative or      representatives   of   a   deceased      person, party to a proceeding under      the Act,  shall be preferred within      one month  from  the  date  of  the      death of  the person  concerned  or      the date of having knowledge of the      death of the person concerned."      A reading of section 18 of the Act as brought in by the 1973 amendment  shows that  when an  execution  petition  is filed before  the Rent Controller, the Rent Controller shall have all  the powers of a Civil Court and the eviction order is to  be executed  as an  order of a Civil Court. The first question is  what are  the powers  of a  Civil  Court  while executing orders passed by it? Powers of Civil Court :      If  during,   the  pendency   of  a  regular  execution proceeding filed  on the  basis of  a decree  or order  of a Civil Court,  the decree  holder or the judgment debtor dies and his  legal representatives  are not  brought  on  record within  ninety   days,  can  the  Civil  Court  dismiss  the execution petition as abated? Order 22  Rule 12  of the  Code of  Civil Procedure reads as follows:      "Order 22  Rule 12:  Application of      order  to   execution  proceedings:      Nothing in proceedings in execution      of a decree or order."      In other words the normal principle arising in a suit - Before the decree is passed - that the legal representatives are to  be brought  on record within a particular period and if not,  the suit could abate,  - is not applicable to cases of death  of the  decree holder  or the  judgment debtor  in execution proceedings.      In Venkatachalam  vs. Ramaswami [1932 ILR 55 Mad. 352 = AIR 1932  Mad. 73  (FB)], a  Full Bench  of the  Madras High Court   has held  that this  rule enacts that the penalty of abatement shall not attach to execution proceedings. Mulla’s Commentary on CPC (Vol.3) p. 2085 (15th Ed., 1997) refers to a large number of judgments of the High Court:      "Rule  12   engrafts  an  exemption      which provides  that where  a party      to an  execution  proceedings  dies      during its  pendency, provisions as      to abatement do not apply. The rule      is, therefore,  for the  benefit of      the decree  holder, for  his  heirs      need    not    take    steps    for      substitution under  Rule 2  but may      apply immediately  or at  any  time      while the proceeding is pending, to

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    carry on the proceeding or they may      file    a    fresh        execution      application."      In our  opinion, the  above statement of law in Mulla’s Commentary  on  the  CPC,  correctly  represents  the  legal position relating  to the  procedure to  be adopted  by  the parties in execution proceedings and as to the powers of the Civil Court.      It is  clear, therefore, that 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 an d 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 t  he 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  judgment debtor,  the decree  holder could file an application to bring the legal representatives of he 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 or Civil Procedure.      Position of execution proceedings under the Act :      We have   already  referred to  Rule 25 which is one of the rules  introduced on  28.10.74 after  the  amendment  of section 18  by Act 23 of 1973. According to that rule, every application  for   making  the   legal   representative   or representatives of  a deceased person, party to a proceeding under the  Act, shall be preferred within one month from the date of  death of  the  person  concerned  or  the  date  of knowledge of the death of the person concerned.      The question  is :  what is the meaning of the words "a proceeding under  the Act".  I s an execution petition not a proceeding "under the Act".      Section 18  as introduced  in 1973  says that the order for eviction  passed under  section 190,  14, 15,  16 and 17 "shall be executed by the Controller, as if such an order is an order  of the  Civil Court  and  for  this  purpose,  the Controller shall have all the powers of a Civil Court".      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 here, t he orders of eviction under section 10, 14, 15, 16 and 17 could not b e treated as orders of a Civil Court and  were to  be treated  only as orders passed by the

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Rent Controller  under the Act. But, because of the fiction, they are  to be  treated as  orders of  a Civil  Court.  The effect of  section  18  is  that  the  orders  of  the  Rent Controller under section 10, 14, 15, 16 and 17 will cease to be orders  passed "under  the Act  by the  Rent Controller " when they  reach the  stage of  execution. Lest objection be raised that the Rent Controller cannot execute an order of a Civil Court,  section 18  further clarifies  that ‘for  this purpose’ the  Rent Controller shall also have all the powers of a  Civil Court,  - which Civil Courts have, while dealing with execution  petitions filed  to execute  orders  of  the Civil Courts.  What is  the effect of the fiction created by use of the words ‘as if’?      In Dargah  Committee. Ajmer vs. State of Rajasthan [AIR 1962 SC  574] the  words ‘as if’ fell for consideration. The case  arose   out  of   the   Ajmer-Merwara   Municipalities Regulation, 1925,  which by  Section 93 provided for appeals against the  levy of  any tax.  Under section  222(4) it was stated that  any money  recoverable by  the committee  under section 222(1)  shall be  recoverable as  if it  were a  tax levied by the Committee". The question was whether an appeal could be  filed under section 93 against a claim of money by the municipal Committee under section 222(!). It was held by this Court that an appeal lay in view of the fiction created by the words ‘as if’. It was observed :      "If by  the fiction  introduced  by      section  222(4),   the  amount   in      question is  to be  deemed as if it      were a tax, it is obvious that full      effect must  be given to this legal      fiction; and  in consequence,  just      as a result of the said fiction the      recovery  procedure  prescribed  by      section  234  (for  taxes)  becomes      available  to   the  Committee,  so      would the right of making an appeal      prescribed  by   section  93(1)  be      available to the appellant."      If therefore  "full effect"   is  to be  given  to  the fiction and  if the  eviction orders  under section 10, 143, 15, 15,  and 17  are to be deemed to b e 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  no 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.      Further, after  section 18  was introduced in 1973, the rule making  authority which  made the  rules on  28.10.1974 must be deemed to be aware that the execution petition is to be disposed  of as  an execution  petition in a Civil Court, and also  aware that  because of  section 18,  there  is  no period  of   limitation  fixed   for  bringing   the   legal representatives of a person, so far as execution proceedings in a  Civil Court  are concerned.  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 use the words, "proceeding under the Act" as applicable

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to proceedings  before the passings of the order of eviction and not  after. We  are, therefore, of the view that Rule 25 does not apply to execution proceedings.      The High  Court was,  therefore, right initially in its order dated  19.9.1997 in  setting aside  the order  of  the execution Court and allowing the impleadment application, on the basis  that Rule 25 did not apply for bringing the legal representatives on record in execution proceedings.      There is equally no fault in what the High Court did in its order dated 12.11.1997 rejecting the review application. All that  it said  was that  if it was conceded that a fresh execution petition  lay, then there was no point in allowing the review,  dismissing the  revision against the refusal to implead and  in permitting  a fresh execution petition to be filed. That  would b  e an  idle formality. The Court has to avoid unnecessary multiplicity of proceedings.      The point  taken in the SLP that the High Court’s order runs counter to the judgment of this Court in Hydro - Chains case [1994  (5) SCC  337] approving the judgment of Raju, J. in Hydro-Chains  [1994 (2)  LW 443] is equally incorrect. It is true that this Court affirmed the judgment of Raju, J. by way of  short speaking order. But, upon reading the judgment of Raju,  J, we  find that the learned Judge followed Ghouse Khan vs.  Rent Controller,  Coimbatore [1991 (2) LW 274] and Trigolchand vs.  Baffna [(1986)  99 LW 438[. In the first of these cases,  Vankataswami, J. (as he then was) followed the judgment of  V . Ramaswami, J. (as he then was) in Ramanujam Naidu vs.  Panchanath Mudaliar [1980 (1) MLJ 232] that Order 22 Rule  12 applies  and Rule 25 does not apply to execution proceedings. It  was also  held t  hat as long as the decree could  be  enforced,  an  application  to  bring  the  legal representatives on  record, could  be presented  within that period.      Here we  have clarified  further that  if the execution petition was  initially filed  in time,  (that is within the time limited for filing execution petition) it remains to be pending even if the legal representatives are not brought on record within  30 days.  If  the  decree  holder  dies,  the petition cannot  be dismissed  even for  default, behind the back of  his legal  representatives. Again   if the judgment debtor died  and the  decree holder  does no bring the legal representative on  record, the  Court could  fix  reasonable time an  d if  the legal  representatives  of  the  judgment debtor are  not brought on record within the time granted by Court,  the   execution  petition  could  be  dismissed  for default.      In the  second case,  Shanmugham, K.  pointed out  that Order 23 Rule 12 applied and the ratio of the Division Bench which decided  Subramania Pillai  vs. Rajakanni  Nadar [1971 (1) MLJ  223], before  the 1973  amendment of Section 18 and the old  Rule 32  - still  held  good.  In  that  case,  the Division Bench  held that rule 32 did not apply to execution proceedings. That  was also the view of V. Ramaswami, J. (as the then  was) and  K. Venkataswami,  J. (as he then was) in the cases  referred to  above which  related to  post - 1973 cases. All  the Judges  in the  above cases disapproved of a dictum of  Ratnavel Pandian,  J. (as  he then was) in Ghouse Khan vs. Rent Controller [84 LW 568 = 1981 (2) MLJ 388] that section 18  dealt with powers of the Civil Court under Order 21 CPC  and not with powers under Order 22 Rule 12. We agree with the  learned Judges in their dissent  of the opinion of Ratnavel Pandian, J. and we are o f the view that section 18 attracts Order 22 Rule 12 also and not merely Order 21 CPC.      In our  opinion, the  High Court was right in initially allowing the  writ petition  on the  ground that Rule 25 was

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not applicable  to  execution  proceedings  an  d  in  later observing, in  the review petition, that if a fresh eviction petition could  be filed,  there was not point in allowing t he review application.      For the  above reasons,  this special leave petition is dismissed.