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1989 DIGILAW 438 (MAD)

Kosalam Rowther v. S. Kandasamy

1989-09-08

RATNAM

body1989
ORDER Ratnam, J. 1. This civil revision petition is directed against the order of the learned Principal District Munsif, Salem, staying further proceedings in R.E.P. No.4 of 1988 in R.C.O.P. No. 111 of 1978, on an application under Order 21, Rule 29, Civil Procedure Code, taken out by the respondent herein. 2. Briefly stated, the circumstances giving rise to the civil revision petition are as follows: The petitioner filed R.C.O.P. No. III of 1978 before the Rent Controller (District Munsif), Salem, under Sections 10(2)(1) and 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960, as amended by Act 23 of 1973, praying for an order of eviction against the respondent herein (who was the second respondent therein) and another. On 13-9-1978, when the application for eviction came up for final hearing, a joint endorsement was made by the petitioner and the respondent herein, after giving up the first respondent in R.C.0.P. N0. III of 1978, in the following terms: On the basis of the joint endorsement aforesaid, the Rent Controller (District Munsif), Salem, passed an order for eviction against the respondent granting him 1 1/2 Years time to vacate the premises in his occupation and in default the petitioner was given the liberty to file an execution petition to evict the respondent from the premises in his occupation. Since the respondent did not vacate the premises in his occupation as agreed, the petitioner herein filed R.E.P.No.28 of 1981 in R.C.O.P. No. III of 1978 on 14-7-1981 for delivery of possession of the premises occupied by the respondent herein. The notice sent in the execution petition was affixed as the respondent was absent and subsequently, a fresh notice was ordered which was also affixed as the respondent was absent. After declaring the service of notice sufficient, delivery of possession was ordered by 12-2-1982. Delivery of possession could not be effected as the house was locked and thereafter, on 27-2-1982, in the execution petition filed by the petitioner, a joint endorsement was made by the petitioner and the respondent in the following terms: On the basis of the endorsement so made, the Court passed an order to the effect that in view of the joint endorsement, the petition is dismissed but the respondent should vacate the premises within one year. Even after the expiry of the period of one year from 27-2-1982, the respondent herein did not vacate the premises, which led to the filing of R.E.P.No.4 of 1988 by the petitioner praying for the relief of delivery of possession pursuant to the eviction order passed in R.C.O.P.No.III of 1978. It was at this stage that the respondent filed R.E.A.No.49 of 1988 purporting to be under Order 21, Rule 29, and Section 151, Civil Procedure Code praying that the further proceedings in R.E.P.No.4 of 1988 in R.C.O.P.No.III of 1978 should be stayed till the disposal of a suit instituted by the respondent in O.S.No.676 of 1988, Sub-Court, Salem. In the affidavit filed by the respondent in support of that application, he stated that on 27-2-1982, in a panchayat, the petitioner orally agreed to sell the property to him for Rs.25,000 and an advance of Rs. 10,000 was also paid on that date and that owing to the non-performance of the terms of the agreement, the respondent had instituted a suit for specific performance in O.S.No.676 of 1988, Sub Court, Salem, and that pending disposal of that suit, he should not be dispossessed that further proceedings in execution in R.E.P.No.4 of 1988 should be stayed. This application was opposed by the petitioner herein on the ground that the application was not maintainable and that the oral agreement for the sale of the property by the petitioner to the respondent on 27-2-1982 and the payment of an advance of Rs.10,000 on that day were not true. The learned District Munsif, Salem, who enquired into this application, held that though the oral agreement had been denied by the petitioner and no interest in the property could be claimed by the respondent on the strength of the oral agreement, yet, the further proceedings in execution should be stayed on payment of entire arrears of rent payable by the Respondent within two weeks, failing which the application will stand dismissed. It is the correctness of this order that is challenged by the petitioner in this civil revision petition. 3. It is the correctness of this order that is challenged by the petitioner in this civil revision petition. 3. Learned Counsel for the petitioner contended that the Court below had misconstrued and misunderstood the provision under Order 21, Rule 29, Civil Procedure Code and pointed out that in the circumstances of this case, the respondent could not invoke Order 21, Rule 29, Civil Procedure Code at all and, therefore, the Court below was in error in having entertained such an application at the instance of the respondent and exercising its jurisdiction thereon. On the other hand, learned Counsel for the respondent submitted that the respondent had been in possession of the premises for several years past and that he had also invested substantial amounts and in view of the pendency of the suit in O.S.No.676 of 1988, Sub Court, Salem seeking the relief of specific performance of the oral agreement for sale of the property, the respondent should not be dispossessed and, therefore, the Court below was right in ordering stay of execution proceedings till the disposal of the suit. 4. The principal question that arises for consideration is, whether the application filed by the respondent in R.E.A.No.49 of 1988 invoking the powers of the Court under Order 21, Rule 29, Civil Procedure Code is maintainable. Order 21, Rule 29, Civil Procedure Code as amended by the Act 104 of 1976, reads as follows: Where a suit is pending in any Court against the holder of a decree of such Court or of decree which is being executed by such Court on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided. Provided that if the decree is one for payment of money, the Court shall, if it grants stay without requiring security, record its reason for so doing. The Proviso is unnecessary for purposes of the present case. It is at once clear from a perusal of the rule referred to above that there should be at the same time two proceedings before the Court viz., one proceeding in execution at the instance of the decree-holder against the judgment-debtor and another viz., a suit at the instance of the judgment-debtor against the decree-holder. It is at once clear from a perusal of the rule referred to above that there should be at the same time two proceedings before the Court viz., one proceeding in execution at the instance of the decree-holder against the judgment-debtor and another viz., a suit at the instance of the judgment-debtor against the decree-holder. Prior, however, to the amendment introduced by Act 104 of 1976, the requirement to be fulfilled before invoking Order 21, Rule 29, Civil Procedure Code was that there should be an identity with regard to the Court in which the suit was pending and the Court which passed the decree. That there should be such an identity was also emphasised by the Supreme Court in Shaukit Hussain v. Bhuvaneswari Devi , where it was pointed out that the pendency of a suit in a Court and the pendency of the execution proceedings before that Court by transfer of the decree from another Court, would not be sufficient to fulfil the requirements of Order 21, Rule 29, Civil Procedure Code. The addition of the words, "or of a decree which is being executed by such Court" indicates that the Court is competent to stay execution of not only a decree passed by it, but also a decree of another Court transferred to it for purposes of execution. In other words, now the identity of the Court which passed the decree under execution and the Court before which the suit of the judgment-debtor is pending is unnecessary. It would also be appropriate at this stage to take note of the scope of Section 18 of the Tamil Nadu Buildings (Lease and Rent Control) Act, as amended. Under that section, the Rent Controller executing an order of eviction remains a Rent Controller, but the powers relating to such execution are the same as that of a civil Court, as if the order sought to be executed is. an order of a civil Court. Bearing in mind the requirements to be fulfilled before invoking Order 21, Rule 29, Civil Procedure Code, as amended, it is seen that on the facts of this case, before the Rent Controller (District Munsif), Salem, only the execution proceedings arising out of R.C.0.P.N0.III of 1978 are pending and no suit before that Court (District Munsifs Court, Salem) had been instituted by the respondent against the petitioner. Indeed the suit instituted by the respondent against the petitioner, even according to him, is now pending before the Sub Court, Salem. In the absence, therefore, of the pendency of any. suit instituted by the respondent herein against the petitioner before the Court of the District Munsif, Salem, the respondent cannot invoke the powers of Court under Order 21, Rule 29, Civil Procedure Code as if the suit instituted by him is pending before that Court and the proceedings for execution are also pending before the same Court. Even if the matter is looked at from the point of view of the pendency of the suit before the Sub Court, Salem, the position is that before that Court no proceedings in execution are pending. Thus, looked at from the point of view of the pendency of the suit by the judgment-debtor against the decree-holder and also the execution proceedings, it is seen that the execution proceedings in this case are pending before the Rent Controller (District Munsif), Salem, while the suit is pending before the Sub-Court, Salem. Under those circumstances, there is absolutely no scope whatever for invoking the power of the Court under Order 21, Rule 29, Civil Procedure Code, to stay the proceedings in execution of the order passed in R.C.O.P.N0.III of 1978. It would be useful in this connection to refer to the decision in H.L. Nantha v. T.C. Ramalingam Pillai, where suits had been instituted by the judgment-debtor against the decree-holder before the District Munsif's Court, Tenkasi, and the decree obtained against the judgment-debtor before the Sub-Court, Tirunelveli, had been transferred to the District Munsif's Court, Tenkasi, for purposes of execution and after referring to the amended provision of Order 21, Rule 29, civil procedure code, it was pointed out that as a result of the amended provisions, the Court acquires competency to stay not only the decree which it passed, but also the decree which had been transferred to it for execution, though passed by another Court. In this case, as pointed out earlier, the decree which is sought to be executed is that of the Rent Controller (District Munsif), Salem and there is no suit pending before that Court against the decree-holder and there is, therefore, no question of the learned District Munsif proceeding to exercise powers under Order 21, Rule 29, Civil Procedure Code as the requirements of that provision have not at all been fulfilled. The conclusion is, therefore, irresistible that the application taken out by the respondent herein invoking the provisions of Order 21, Rule 29, Civil Procedure Code was not maintainable and that the Court below erred in proceeding to entertain such an application and pass orders thereon. The Civil Revision Petition is, therefore, allowed setting aside the order of the Court below in R.E.A. No. 49 of 1988 in R.C.O.P. No. III of 1978, which will stand dismissed, with costs.