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1991 DIGILAW 807 (MAD)

Subbaiah Thevar v. Rasu Mudaliar

1991-10-28

SRINIVASAN

body1991
Judgment :- This Revision Petition is directed against an order of the executing court dismissing the application filed by the petitioner herein under S. 47 of the Code of Civil Procedure for declaration that the decree in O.S. 818/69 is non est in law and consequentially ordering that the same is inexecutable and unenforceable. The short facts are these-: The respondent filed O.S. 818/69 on the file of the District Munsif, Sirkali for recovery of possession. The respondent claimed to be the trustee of the trust to which the property belonged. The petitioner resisted the suit on the ground that the respondent was not a trustee and that he was a lessee with a permanent occupancy right. The petitioner also raised a contention that he has perfected title by adverse possession. He claimed a sum of Rs. 20,000/- by way of compensation for the superstructure erected by him. 2. The trial court dismissed the suit holding that the respondent had lost his trusteeship by ouster. On appeal, the appellate Court reversed it and granted a decree in favour of the respondent. On a Second Appeal by the petitioner, this Court confirmed the findings of the lower appellate court and dismissed the Second Appeal by its judgment dt. 18.8.1980. 3. The petitioner filed an application under S. 9 of the City Tenants Protection Act along with a petition for condonation of delay in filing the same. The petition for condonation of delay was ordered by the trial court, but on revision that order was set aside. I disposed of the Revision Petition viz., CRP. 203 of 1985 by order dated 21.4.1988 holding that there was no bona fide on the part of the petitioner for the delay caused by him and consequently dismissing the application for condonation of delay. 4. Thereafter, the petitioner has filed the application, out of which this revision arises, under S. 47 of the Code of Civil Procedure. It is the contention of the petitioner that during the pendency of the appeal against the decree in the suit, the City Tenants Protection Act was extended to the town of Sirkali wherein the property is situated. According to the petitioner, under the provisions of Act 16 of 1964 all the proceedings, instituted by a landlord in respect of a non-residential building stood abated on the passing of the Act. According to the petitioner, under the provisions of Act 16 of 1964 all the proceedings, instituted by a landlord in respect of a non-residential building stood abated on the passing of the Act. It is, therefore, argued by the petitioner that the appeal against the decree in the suit stood abated with the result that the decree passed by the appellate court is void ab initio . It is also contended that consequently, the decree in the Second Appeal is also unenforceable. 5. Before dealing with the contention raised by the petitioner, it is necessary to set out the following facts. The suit was dismissed by the trial court on 1.7.1974. The appeal against the same viz., A.S. 182/75 was allowed by the District Court, East Thanjavur at Nagapattinam on 24.12.75. During the pendency of the appeal, the Act was extended to Sirkali under G.O.Ms. 1285 dated 31.5.1975 which was published in the Gazette dated 23.6.1975. Hence the appeal was pending for nearly six months after the extension of the Act. The petitioner did not choose to invoke the provisions of the Act before the appellate court. Nor did he raise a contention in the appellate court that the appeal stood abated by virtue of the extension of the Act. 6. Thereafter, the Second Appeal filed by the appellant viz., S.A. 725/77 was dismissed only on 18.8.1980. The petitioner had more than five years from the date of extension of the Act either to invoke the Act and claim the benefits of the Act or to contend that the proceedings stood abated, He did not do either. 7. It is only in the execution proceedings, the petitioner, after dismissal of the C.R.P. has come forward with the application invoking the benefits under the Tamil Nadu City Tenants Protection Act, in which he failed at the threshold. The petitioner is not entitled to the benefits of the Act. The question whether the suit stood abated would depend on the question whether the plaintiff is entitled to the benefits of the City Tenants Protection Act. 8. When the jurisdiction of a court is dependent on the ascertainment of facts on the basis of which the applicability of a particular Act has to be decided, that question ought to be raised in the proceeding itself. 8. When the jurisdiction of a court is dependent on the ascertainment of facts on the basis of which the applicability of a particular Act has to be decided, that question ought to be raised in the proceeding itself. It is not open to the petitioner to raise such a question now after the proceeding has come to an end and a decree has been passed against him. If the question has to be decided as a question of law, the executing court can go into it. But, the question in this case whether the provisions of the City Tenants Protection Act could be invoked by the petitioner depended upon certain facts and unless such facts are established, he cannot invoke the benefits of the Act. Hence, it is not open to him to raise for the first time in the executing court that the decree passed by the trial court was unenforceable or in executable. (Vide Vasudev Dhaniibhai Modi v. Rajabhai Abdul Rahman and others AIR 1970 S.C. 1475 . 9. It is to be noted that the petitioner claimed compensation for the superstructure even in the suit. That claim was negatived by the lower appellate court and confirmed by this Court in the Second Appeal. Hence, the petitioner is not entitled to the benefits of the City Tenants Protection Act. Under S. 9 of the Act, it is only a tenant who is entitled to compensation under S. 3 of the Act, who can file an application under that section. When in the suit it has been clearly found that the petitioner is not entitled to claim compensation of the superstructure, it is not open to the petitioner to contend now in the executing court that he would be entitled to the benefits of the Act and as a result of the provisions of the Act, the proceedings stood abated. 10. In the result, there is no merit in the Revision Petition and it is hereby dismissed with costs.