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.
PETITIONER:
V.UTHIRAPATHI
Vs.
RESPONDENT:
ASHRAB ALI & ORS.
DATE OF JUDGMENT: 18/02/1998
BENCH:
S. SAGHIR AHMAD, M. JAGANNADHA RAO.
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
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
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
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
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
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
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.
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.
PETITIONER:
V.UTHIRAPATHI
Vs.
RESPONDENT:
ASHRAB ALI & ORS.
DATE OF JUDGMENT: 18/02/1998
BENCH:
S. SAGHIR AHMAD, M. JAGANNADHA RAO.
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
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
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
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
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
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
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.
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