Abdul Waheed Sahib v. A. N. Naina Mohamed — 1981 DIGILAW 15 (MAD)

ORDER:- All these revision petitions arise out of a common order passed by the District Munsif of Chidambaram in E.A. Nos. 148, 150, 152 and 154 of 1977 in O.S. Nos. 621, 622, 623 and 692 of 1968 respectively on the file of this Court. 2. The question, which is of some interest raised for consideration in the revision petitions is whether on the face of the petitions filed under section 17 , Civil Procedure Code, by the defendant, the executing Court is bound to consider whether the decrees in ejectment passed against the defendant are rendered non-executable by virtue of the provisions of the Tamil Nadu Cultivating Tenants Protection Act, 1955 (hereinafter referred to as Act XXV of 1955 read with the provisions of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969). 3. The brief facts, which require mention, are as follows: The respondent in each of the revision petitions is the owner of a certain extent of land, which Abdul Wahab Sahib, the petitioner in all the cases, claims to have taken on lease. The claim of tenancy was however not accepted by the several respondents. They, therefore, filed the suits mentioned above for declaration of their title and for recovery of possession. The petitioner's defence was that he was a cultivating tenant and was entitled to protection under Act XXV of 1955 from eviction. The trial Court sustained the case of the petitioner and dismissed the suits, but on appeal by the respondents the trial Court's judgment was reversed and the various suits were decreed in favour of the plaintiffs therein. There were second appeals to this Court by the petitioner (Second Appeal Nos. 696 to’ 699 of 1974). During the pendency of those appeals, the petitioner claimed that his name had been registered as a tenant by the appropriate authority under the provisions of Act X of 1969 and on that basis he filed C. M. P. Nos. 12642 to 12645 of 1976 to have the final notification under Act X of 1969 received as additional evidence, in the second appeals. 12642 to 12645 of 1976 to have the final notification under Act X of 1969 received as additional evidence, in the second appeals. Varadarajan, J., who heard the second appeals, rejected the petitions for reception of additional evidence on the ground that “no application under Order 12 , rule 27 of the Code of Civil Procedure, for receiving additional evidence in second appeal is maintainable.” Eventually, the learned Judge concurred with the findings of the lower appellate Court and dismissed all the second appeals. The result was that the decree for ejectment passed in favour of each of the respondents by the lower appellate Court stood confirmed. In pursuance of the decree, the respondents filed execution petitions for obtaining delivery of possession of the suit properties from the petitioner herein. It was at that stage of matters, the petitioner filed E. A. Nos. 148, 150, 152 and 154 of 1977 under section 47, Civil Procedure Code. 4. By means of the abovesaid petitions, the petitioner contended before the Executing Court that by reason of his name being entered as a tenant in the Record of Tenancy Rights under Act X of 1969, the decrees passed against him in the suits have become null and in-executable and consequently the executing Court must render such a finding and dismiss all the execution petitions. The learned District Munsif has repelled the contention and held that all the issues in question raised by the petitioner have already been considered and decided by the High Court in S.A. No. 696 to 699 of 1974 and as such the. applications are barred by res judicata and there are also no merits in them. Accordingly, the learned District Munsif dismissed all the applications and it is against such an order these revision petitions have been filed. 5. Mr. Kesava Iyengar, the learned counsel for the petitioner submitted that the District Munsif has not only misunderstood the matters, but has also failed to exercise the jurisdiction vested in him and hence there is imperative need for the revision petitions being allowed and the applications being remitted back to the executing Court for fresh disposal on merits. The arguments of Mr. Kesava Iyengar ran thus. The arguments of Mr. Kesava Iyengar ran thus. Firstly, the District Munsif was wrong in saying that the questions raised in the applications under section 47, Civil Procedure Code, have already been considered by the High Court in the second appeals and decided and as such the matter is barred by res judicata. This argument is advanced on the basis that the learned single Judge of the High Court refused to receive the additional evidence sought to be filed by the petitioner and in such a situation there could not have been any pronouncement on the merits of the contentions raised by the petitioner. His further argument was that the decrees in ejectment obtained by the respondents do not become automatically executable because the right to file a suit and obtain a decree is a common law right whereas the right of execution is a right conferred by statute and in the instant case the provisions of Act XXV of 1955 clearly interdict the execution of decrees for possession or for ejectment. Hence, according to the counsel, the executing Court must have applied its own mind and considered the contentions put forward by the petitioner before dismissing the applications filed by the petitioner under section 47, Civil Procedure Code. 6. On the other hand, Mr. Sundaravaradan, the learned counsel for the respondents, vehemently argued that the provisions of Act XXV of 1955 will not at all apply to the petitioner since it has been found by the lower appellate Court as well as the High Court in the suits filed by the respondents that there was no jural relationship of tenant and landlord between the petitioner and the respondents and in view of such a finding it was futile for the petitioner to still contend that he was a cultivating tenant. The learned counsel further stated that the Civil Court's jurisdiction to decide the question whether the petitioner was a cultivating tenant or not has not been taken away and therefore, the findings rendered against the petitioner in the suits will be fully binding on the parties. In this connection, Mr. Sundaravaradan also pointed out that the provisions ofAct X of 1969 will not advance the case of the petitioner in any manner because he claims tenancy from 17th July, 1969. Lastly, Mr. In this connection, Mr. Sundaravaradan also pointed out that the provisions ofAct X of 1969 will not advance the case of the petitioner in any manner because he claims tenancy from 17th July, 1969. Lastly, Mr. Sundaravardan stated that in any event it was not open to an executing Court to go into the question whether the decrees for ejectment passed in the suit filed by the respondents were valid pronouncements or not. 7. I should now proceed to examine the contentions of the parties in detail. It is no doubt true that the suits filed by the respondent in each of the petitions has ended in decrees in their favour recognising their title and also their entitlement to recovery of possession of the respective items of suit properties belonging to them. The petitioner put forth a defence in the suits that he was a cultivating tenant and was entitled to protection in terms of section 3 of Act XXV of 1955. But such a contention was repelled by the lower appellate Court and the High Court. Do these decrees entitle the respondents to successfully levy execution for recovery of possession of the properties, as contended by them or are these decrees liable to be held in-executable by reason of the notification obtained by the petitioner under Act X of 1969, is the matter now requiring consideration. In the view I propose taking on the matter, it is not necessary to render a finding on the several arguments advanced by Mr. Kesava Iyengar and Mr. Sundaravaradan, in support of their respective contentions. However, it is necessary to make mention about the contentions and the authorities cited by the counsel in support of their submissions for a proper understanding of the controversy. 8. For the respondent's it was firstly contended that notwithstanding the provisions ofAct X of 1969, the Civil Court's jurisdiction to decide about the statue of a person in possession of a land, i.e., whether he is a tenant or not is not taken away. As authority for this proposition, reliance was placed on B. Venkata Reddy v. Bhushireddy1and Periathambi Gounden v. Dist. Revenue Officer2. As authority for this proposition, reliance was placed on B. Venkata Reddy v. Bhushireddy1and Periathambi Gounden v. Dist. Revenue Officer2. In the former case, it was held that the exclusive jurisdiction of the Tahsildar under section 16 (1) of the Andhra Pradesh (Andhra Area) Tenancy Act, would be attracted only if there is consensus between the landlord and the tenant regarding the existence of the tenancy and the relationship of landlord and tenant between them, but if these factors are disputed than the jurisdiction of the civil Court to entertain actions for determination of the disputes between the parties does not stand taken away. In the latter case, it was held that a suit instituted prior to the coming into force of section 16-A of Act X of 1960 will have to run its natural and normal course prescribed by law and the civil Court's jurisdiction to retain the suit on its file and render judgment is not taken away. in any manner. 9. Nextly, it was argued that whatever be the validity or otherwise of the decrees passed in the suits filed by the respondents, the execution Court has power to examine the correctness of the decrees or go behind the decree and give relief to a party, who was expressly denied that relief in the suit. In support of this contention, the following cases were cited. (i) V. Ramaswami v. Kailasa Thevar1 (ii) Topanmal v.M/s. Kundumal Gangaram2; (iii) State of West Bengal v. Hemant Kumar3; (iv) Naginess v. Balpatram4; (v) Narayan Gowda v. Krishna Kadyastha5; (vi) Ranga Ayyar v. Sundararaja Ayyangar6. 10. On the other hand, Mr. Kesava Iyengar argued that he was not disputing the finality of the renderings in S. A. Nos. 696 of 1974, but all that he was contending is that inspite of the decrees passed against the petitioner, these decrees have now become inexecutable in view of the Notification made by the appropriate officer in favour of the petitioner under Act X of 1969. The learned counsel stated that every citizen has a common law right to file a suit and obtain a decree in his favour, subject to his contentions being upheld by the Court, but when it comes to a matter of execution of the decree obtained, he must satisfy the executing Court that he has been confered by statute a right of execution. Such a contention is put forward on the footing that executions are mere creatures of the law and there is no inherent right in any one to have his decree executed. In support of this contention, Mr. Kesava Iyengar cited The Attorney-General of Ontario v. The Attorney-General for the Dominion of Canada1. In the said decision, the following passage is found at page 198: “Now there can be no doubt that the effect to be given to judgments and executions and the manner and extent to which they may be made available for the recovery of debts are prima facie within the legislative powers of the Provincial Parliament. Executions are a part of the machinery by which debts are recovered, and are subject to regulation by that Parliament. A creditor has no inherent light to have his debt satisfied by means of a levy by the sheriff; or to any priority in respect of such levy. The execution is a mere creature of the law which may determine and regulate the rights to which it gives rise.” 11. According to the counsel in the instant case the statute, far from conferring the right of execution on the respondents, has actually placed an embargo on their rights under section 3 of Act XXV of 1955 by laying down that subject to the exception contained in the sub-section, no cultivating tenant shall be evicted from his holding or any part thereof, by or at the instance of his landlord, whether in execution of a decree or an order of Court or otherwise. According to Mr. Kesava Iyengar, the rights of a cultivating tenant should without exception be determined in accordance with the provisions of Act XXV of 1955 and not with reference to any other law be it personal or general. The learned counsel relied in support of this proposition on the dictum laid down in G. Ponniah v. N. Perumal2and Ganesa Vanniar v. Venguswamy3. Kesava Iyengar, the rights of a cultivating tenant should without exception be determined in accordance with the provisions of Act XXV of 1955 and not with reference to any other law be it personal or general. The learned counsel relied in support of this proposition on the dictum laid down in G. Ponniah v. N. Perumal2and Ganesa Vanniar v. Venguswamy3. The learned counsel also cited a decision of mine in Krishnaswamy v. Rasheeda4where it was held that a decree for recovery of possession passed in a suit before the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act (XVIII of 1960 ) were extended to the area in which the house property was situate, which was the subject-matter of the suit, when the Act was extended, would cease to have executable force in view of the embargo placed on such executions by section 10 (1) of Act XXVIII of 1960. 12. As I have already referred to above, these are matters which are to be really gone into by the executing Court and not by this Court sitting in revision against the impugned order. The learned District Munsif has dismissed the applications filed by the petitioner in the erroneous impression that the contentions raised before him about the non-enforceability of the decree have already been considered and decided by the High Court in Second Appeal Nos. 696 to 699 of 1974. The conclusion of the District Munsif is clearly wrong. The petitioner sought to file the notification made under Act X of 1969 as a piece of additional evidence in the second appeals, but the learned single Judge and rightly, if I may say so with respect, refused to receive the document as additional evidence because it is by now well-settled that Order 41 , rule 27, Code of Civil Procedure, will have no application to second appeals. Therefore, it is wrong for the District Munsif to have assumed that the point now raised by the petitioner has already been considered by the High Court in second appeals. Even otherwise, it can never be said that a Court, while passing a decree, could have also made a pronouncement about the executability of the decree. Therefore, it is wrong for the District Munsif to have assumed that the point now raised by the petitioner has already been considered by the High Court in second appeals. Even otherwise, it can never be said that a Court, while passing a decree, could have also made a pronouncement about the executability of the decree. The question of the enforceability of a decree would arise only at the stage of execution proceedings and not earlier and as such, even as a proposition it will be a fallacy to say that the Court can render a finding about the executability of the decree even at the time of the passing of the decree. The learned District Munsif has then referred to certain observations by the High Court, which really do not threw any light on the facts of the case. Even assuming that the observation of the learned single Judge, that in spite of section 16-A of theAct X of 1969, the civil Court's jurisdiction to render a finding about the status of the parties is not affected, will amount to an adjudication of the rights of the parties, the District Munsif has failed to see that those observations must be eschewed from consideration because no pronouncement on merits by a Court without jurisdiction over a matter can have any legal force, Vide Upendra Nath v. Lall1. The learned District Munsif was, therefore, not right in holding that all the points raised in the petition under section 47, Civil Procedure Code, have already been considered and decided against the petitioners in the second appeals. 13. Mr. Sundaravaradan, appearing for the respondents, lastly stated that in any event the notification, now projected for consideration by the petitioner, was not a final notification under Act X of 1969 and as such the petitioner is not entitled to claim the status of a registered tenant on the basis of a provisional notification. This is also a matter which the executing Court has to consider while dealing with the applications on their merits. 14. In the result, for the aforesaid reasons, I am clearly of the opinion that the learned District Munsif has failed to execute the jurisdiction vested in him. He ought to have considered the applications filed by the petitioner on merits including the question of the executability of the decrees and rendered judgment. 14. In the result, for the aforesaid reasons, I am clearly of the opinion that the learned District Munsif has failed to execute the jurisdiction vested in him. He ought to have considered the applications filed by the petitioner on merits including the question of the executability of the decrees and rendered judgment. On the other hand, he has erroneously proceeded on the basis that these matters have already been considered and decided by the High Court in the second appeals referred to above. All the revision petitions will, therefore, stand allowed. The matter will be remitted back to the District Munsif for enquiry and disposal on merits. It is however made clear that none of the observations contained in this order should be taken as a pronouncement on the main contentions of the parties in the applications. With these observations, all the revision petitions will stand allowed but there will be no order as to costs. R.S. ----- Petitions allowed.