(Prayer: Civil Revision Petition filed under Section 115 of the Code of Civil Procedure, against the order and decreetal order dated 03.03.2011, made in E.A.No.8 of 2006 in O.S.No.89 of 1989, on the file of the Subordinate Court at Chidambaram.
Civil Revision Petition filed under Article 227 of the Constitution of India, against the order dated 03.03.2011 in E.A.No.1 of 2008 in E.A.No.175 of 2007 in E.A.No.8 of 2006 in E.P.No.65 of 2006 in O.S.No.89 of 1989, on the file of the Sub Court, Chidambaram.)
Common Order:
1. This Civil Revision Petition in C.R.P.No.1563 of 2011 is arising out of the order passed by the Sub-Court, Chidambaram E.A.No.8 of 2006 in E.P.No.65 of 2006 in O.S.No.89 of 1989 dated 03.03.2011 dismissing the application filed by the judgment debtor under Section 47 of CPC.
2. This Civil Revision Petition in C.R.P.No.2330 of 2011 is arising out of the order passed by the Sub-Court, Chidambaram in E.A.No.1 of 2008 in O.S.No.89 of 1989 dated 03.03.2011 allowing the application filed by the judgment debtor for appointment of advocate commissioner to ascertain the value of building with the help of engineer.
3. The undisputed facts leading to filing of the present Civil Revision Petitions is that the petitioner in C.R.P.No.2330 of 2011 is the plaintiff and the petitioner in C.R.P.No.1563 of 2011 is the 1st defendant/ judgment debtor in O.S.No.89 of 1989 on the file of the Sub-Court, Chidambaram filed for the relief of recovery of possession and recovery of sum of Rs.16,791.40/- and means profit as Rs.1.500/- per year and for other reliefs. For easy reference the parties, the plaintiff is referred as petitioner and the judgment debtor is referred as respondent.
4. There is no dispute that the petitioner is the owner of the vacant site and the respondent is a tenant and the respondent contested the suit by filing written statement. Ultimately the suit decreed only in respect of recovery of arrears of rent and with regard to recovery of possession the suit was dismissed. The Petitioner filed an appeal in A.S.No.114 of 1995 and the respondent filed appeal in A.S.No.46/1995 before the District Court, Cuddalore. The appeal filed by the defendant was dismissed and the appeal filed by the plaintiff was allowed on 18.08.1997 and the suit was remanded back to the Trial Court with regard to issue of recovery of possession and the application for provisions of City Tenant Protection Act.
5. As against the remand the defendant filed second appeal in S.A.No.1763 of 1997 and the plaintiff filed second appeal in S.A.No.863 of 2005 before this Hon ble Court. The Division Bench of this Hon ble Court set aside and remand back to the trial Court for passing orders and the orders decreed on 22.08.2005, which is extracted hereunder:-
1. That Clause 1 of the decree of the trial court to stand
2. That Clause 2 of the decree of the trial court too stand deleted
3. That the following shall be added as clauses 2 to 4 to the decree of the Trial Court
2. That the defendants do deliver to the plaintiff herein possession of the property more fully described in the schedule to the decree of the trial court.
3. That the defendant do pay the plaintiff damages at the rate of Rs.1,500/- per year from 19-07-1989 from the date of plaint till date of delivery of possession of the property more fully described in the schedule to the decree of the trial court.
4. That the determination of future means profit till date of delivery of the property more fully described in the schedule to the decree of the trial court is relegated to separate proceedings under Order 20, Rule 12 of the Code of Civil Procedure.
4. That clause 3 of the decree of the trial court to re-number as clause- 5
5. That there shall be no costs in these second appeals
6. Subsequently the execution petition in E.P.No.65/2006 was filed, wherein the judgment debtor filed a petition in E.A.No.8/2006 under Section 47 of CPC questioning the executability of the decree with the prayer that he is entitled to the cost of building at Rs.30/- Lakhs or such amount as may be determined by court, together with interest at 36% per annum and as well as in the event of respondent s failure to pay cost the E.P may be dismissed. The averments in Section 47 Petition is that he is entitled to get the value of building as per Section 34(C) of Hindu Religious and Charitable Endowments Act, 1959 in the event of recovering the possession.
7. Pending Section 47 application the judgment debtor filed another application in E.A.No.1 of 2008 praying to appoint a qualified Engineer or appoint an Advocate Commissioner to value the building and file a report, so as to ascertain the value of building. The Executing Court dismissed the petition filed under Section 47 of CPC on the ground that the judgment debtor cannot maintain the petition under Section 47 of CPC, however granted liberty to file additional counter in the execution petition through the impugned order and the executing Court allowed the application filed for appointment of advocate commissioner on giving a finding that to decide the right of judgment debtor to claim compensation for the building in the execution petition, the value of building must be ascertained and thus appointed advocate commissioner.
8. As against the dismissal of application under Section 47 of CPC the judgment debtor filed revision in C.R.P.No.1563 of 2011 and as against allowing the application for appointment of advocate commissioner the plaintiff filed revision in C.R.P.No.2330 of 2011.
9. The learned counsel for the judgment debtor submitted that the issue raised in the application for determination of compensation for the building has to be decided only under Section 47 of CPC and the same cannot be raised as defense in the execution petition as the Executing Court is not entitled to consider the claim of loss and it cannot go beyond the decree. However the entitlement of payment of compensation under Section 34(C) of Hindu Religious and Charitable Endowments Act, 1959 could be decided only under Section 47 of CPC and thus the order dismissing the application without going into the merit is liable to be set aside and the petition has been decided afresh. The learned counsel further added that the Executing Court rightly allowed the application filed for appointment of advocate commissioner to ascertain the value of building and the report would help the court to arrive fair determination of the value of building while considering the application filed under Section 47 of CPC and thus prayed for dismissal of C.R.P.No.2330 of 2011.
10. Per contra, the learned counsel for the plaintiff/decree holder argued that the executing Court is perfectly right in dismissing the application filed under Section 47 of CPC as it cannot go behind or beyond the decree, however it committed wrong in giving liberty to file additional counter in the execution petition and thus the C.R.P.No.1563 of 2011 is liable to be dismissed. In so for the order appointing advocate commissioner is concerned the same is totally unwarranted as Section 34(C) of Hindu Religious and Charitable Endowments Act, 1959 will not apply to the present case and Section 34(C) can be applied only if the case comes under Section 34(A) and (B) of the above Act.
11. The learned counsel further added that even assuming that the provision is applicable the tenant is entitled to the loss only if the superstructure was put up by the tenant after obtaining prior permission. As admittedly there is no prior permission and the present relief sought for under Section 47 of CPC cannot be decided by the executing Court and the executing Court has no jurisdiction to the value of building and right of judgment debtor to get compensation as a precondition for ordering execution petition when there is no decree to that effect. Further the tenancy was only under the provisions of Transfer of Property Act, 1882 and as such no question of compensation for superstructure and the claim of the compensation is against the lease agreement, which was also not claimed in the suit and thus there is no necessity to ascertain the value of building, as such the order of appointing advocate commissioner is liable to be set aside.
12. I have heard Mr.K.Chandrasekaran, learned counsel appearing for the respondent in CRP.No.1563 of 2011 and petitioner in CRP.No.2330 of 2011. No representation for the petitioner in CRP.No.1563 of 2011 and respondent in CRP.No.2330 of 2011 and I have carefully considered the records and argument of counsels.
13. One thing it is to be seen that the decree passed by this Hon ble Court in S.A.No.1763 of 1997 and S.A.No.863 of 2005 dated 22.08.2005 is very categorical and clear that the defendants are directed to deliver the property and pay damages of Rs.1,500/- per year from 19.07.1979 till date of delivery of possession. The decree attained finality as there is no appeal filed by the defendant. It is settled principle of law that the Executing Court cannot go behind or beyond the decree. In the judgment of Hon ble Supreme Court reported in 1998 (2) SCC 510 and 2007 (4) MLJ 361, the Apex Court has held that
the executing Court or the High Court in revision cannot go behind the decree of a court of competent jurisdiction except where the decree is void ab-initio and without jurisdiction .
14. In the present case it is not the case of judgment debtor that the decree is void or without jurisdiction. Thus the very criteria to maintain the application filed under Section 47 of CPC is not available and the same is rightly dismissed by the court below. When the judgment debtor filed written statement defending the plaintiff if so desire, he would have raised the plea of compensation for the building and prayed the relief through counter claim, on payment of court fee or by fling a separate suit as the case may be. The judgment debtor having failed to make the plea and having adjudicated the issue up to this Hon ble Court, it is not open to him to raise the plea, even if he is entitled to get the compensation under law that too with the prayer for direction to pay compensation by filing petition under Section 47 of CPC in the execution petition. The very reading of the prayer in the application under Section 47 CPC clearly shows the same must be a prayer in the suit or counter claim and not under Section 47 of CPC. The judgment debtor, who failed to make such claim in the written statement, cannot be allowed to raise the same in the guise of application filed under Section 47 of CPC. In fact the plea raised in the application cannot be maintained under Section 47 as is not related to the execution, discharge or satisfaction of decree and the decree passed is an unconditional one to hand over possession, as such the executing court must see that the decree should be executed as it is.
15. It would be useful to refer the judgment of this Hon ble Court:
I. 2014 (3) CTC 10, holding that the questions to be raised before executing Court should be qualified by rider that same should be relating to execution, discharge or satisfaction of decree and any new plea which was omitted to be taken in the written statement cannot be considered as a question to be decided by executing Court in the application filed under Section 47 of CPC. The relevant paragraph is extracted hereunder:-
9. As rightly contended by the Revision Petitioner, the first part and the second part joined with the conjunction and cannot be read disjunctly. Otherwise, a party to the proceedings, after omitting to take a plea in the written statement, can project any question as a question arising between the parties in the suit in which the decree is passed. Therefore, as rightly contended by the learned counsel for the Revision Petitioner, such question arising between the parties to the suit to be decided by the Executing Court should be qualified by a rider that the same should be relating to the execution, discharge or satisfaction of the decree. Such an interpretation alone shall be the meaningful interpretation. Otherwise, the same will lead to a chaotic position whereby a litigant who omits to put forth a plea in the suit can bring to on filing applications under Section 47 raising the pleas, which he ought to have raised in the suit.
II. Another judgment of this Hon ble Court in the case of G.Janobai and others v. V.M.Devadoss reported in 2016 (4) CTC 496, also held to the effect that
the issue which was not raised in the written statement, cannot be allowed to be raised in the application filed under Section 47 and the decree attained finality cannot be modified in the application filed under Section 47.
III. Yet another judgment in A.V.Hanifa v. Salima Dhanu reported in 1991 (2) MLJ 325, this Court clearly held that
if a question ought to have been raised by a party before the Trial Court, at the stage of trial and if he omits to raise it, even then, he cannot raise it under Section 47 of the Civil Procedure Code before the Executing Court.
IV. In the judgment of this Hon ble Court in the case of Narendra Kumar v. Sumathi reported in 2012 (2) CTC 198, this Hon ble Court held, that
Executing Court cannot sit in Appeal over decree passed by Court nor is entitled to pass an order which will virtually result in affecting rights of parties settled under decree .
V. In the judgment of this Hon ble Court in the case of Thanji Ammal v. Kuttachi Ammal and others reported in 2014 (2) MWN (Civil) 174, this Hon ble Court held that
the new plea cannot be raised before executing Court application filed under Section 47 of CPC.
Therefore, the ratio laid down in this Judgment squarely applies to the facts and circumstances of the present case.
16. As stated supra, the judgment debtor, who failed to take the plea and seek the relief in the written statement, cannot be allowed to raise it in the application filed under Section 47 of CPC. Further the non-seeking of relief of compensation, available at the time of defence cannot be claimed now as it is also hit by Order 2, Rule 2 of CPC. Hence the judgment debtor cannot maintain the application under Section 47 and as such the dismissal of the application holds good, does not warrant any interference.
17. Another point for consideration raised regarding applicability of Section 34(C) of Hindu Religious and Charitable Endowments Act, 1959 is also not appreciable since the decree is confined with delivery of possession, which attained finality and as stated supra the same should be executed as directed by this Court, without any condition. It seems that the plea of compensation raised in the application under Section 47 is only an afterthought so as to prolong the delivery of possession as the tenant is enjoying the property and getting sizable income from his tenants. The faint attempt of the judgment debtor is to prevent the decree holder from enjoying the fruits of decree and gain undue advantage of keeping the possession by making frivolous application under Section 47, which is against the decree and it is a case of abuse of process of law.
18. Here, when the executing Court has dismissed the application filed under Section 47 it should have kept in mind that the question raised in the application cannot be adjudicated in the execution petition but it should execute the decree in the letter and spirit. However it has granted liberty to file additional counter in the execution petition and also appointed the advocate commissioner to ascertain the value of building, which is beyond its jurisdiction. As rightly contented by the counsel for the petitioner/plaintiff the superstructure itself put up without permission and as such there is no question of compensation. Even under Section 34(C) of Hindu Religious and Charitable Endowments Act, 1959, the prior permission for construction is must and as such the very claim is baseless, taken only with the view to prolong the execution proceedings.
19. The cursory look of Section 34(C) of Hindu Religious and Charitable Endowments Act, 1959 clearly shows that Section 34(C) could be applied only if the fixation of lease is as per Section 34(A) and the determination of lease is as per Section 34(B). But here, the lease is as per provisions of Transfer of Property Act, 1882 and the Division Bench of this Hon ble Court has held that the determination of lease is valid and thus decreed the suit. While so, it is not for the executing Court to frame any issue regarding the determination of compensation applying provision of under Section 34(C) of Hindu Religious and Charitable Endowments Act, 1959.
20. The present case is a classic example to how the tenants are taking undue advantage of existence of building, which was constructed without even obtaining permission from the landlord and seeking sympathy from Court by projecting the construction. When the very construction itself illegal he has no right to claim compensation the judgment debtor constructed the building knowing well that it is illegal but with a view to retain the property in the guise of sympathy and equity. Entertaining these types of application itself is a premium given to the wrong doer which is not permissible under law. A person who is occupying the property as tenant must always bear in mind that he is only a licensee to occupy and will have to handover the possession in a manner know to law and particularly he has no right to invest anything on the property or make construction, without permission of owner. If he does so he is taking risk knowingly and in that case there shall not be any equity or sympathy shown to him, which will adversely, affects the right of lawful owner.
21. As stated supra, there is no question or issue to be decided in the executing Court with regard to value of building and the decree to be executed as it is and the possession must be handover to the decree holder without any condition. As such the executing Court is not right in appointing an advocate commissioner by giving a finding that the value of building is to be ascertained for deciding the issue in the execution petition. Hence the order passed by the executing Court appointing advocate commissioner is ought to be set aside.
22. In the result:
(a) the C.R.P.No.1563 of 2011 is dismissed by confirming the order passed in E.A.No.8 of 2006 in E.P.No.65 of 2006 in O.S.No.89 of 1989 dated 03.03.2011, on the file of Sub-Court, Chidambaram and liberty is granted to Judgment debtor to file additional counter in E.A.No.8 of 2006.
(b) CRP.No.2330 of 2011 is allowed by setting aside the order passed in E.A.No.1 of 2008 in E.P.No.65 of 2006 in O.S.No.89 of 1989 dated 03.03.2011, on the file of the Subordinate Court, Chidambaram.
(c) the Execution Court namely the Subordinate Court, Chidambaram is hereby directed to dispose the E.P.No.65 of 2006 within a period of two months from the date of receipt of a copy of this order, without giving any adjournment to either parties. Both the parties are hereby directed to co-operate for early disposal.
23. Accordingly, the Civil Revision Petition in CRP.No.1563 of 2011 is dismissed and CRP.No.2330 of 2011 is allowed. No costs. Consequently, connected miscellaneous petitions are closed.