Civil Revision Application No.112 of 2009

21st July, 2014

Petitioner Counsel: Mr. S.K. MALI, Mr. VISHNU L. CHAUDHARI
Respondent Counsel: Mr. APTE, Mr. SAROJ BARUCHA, Ms. ADITI PHATAK, Mr. RAVI THANKANIAN

Cases Cited:
Ram Tahal Modi Vs. Ratan Lal, AIR 1969 PATNA 13 [Para 5,14]
Champabai Manilal Shah and another Vs. Anandrao Ramchandra Patil and another, 1993 (3) BCR 305 [Para 5,14]
Jugalkishore Saraf Vs. M/s.Raw Cotton Co.Ltd., AIR 1955 SC 376 [Para 8,14]
Zilla Singh and others Vs. Hazari and Others, (1979) 3 SCC 265 [Para 8,14]
Gnanasundaram and another Vs. Murugesa Naicker, AIR 1989 MADRAS 343 [Para 14]

JUDGMENT

JUDGMENT :- Heard the learned counsel for the parties.

2. The present Civil Revision Application is preferred by unsuccessful tenants challenging the order dt.27/28.11.2008 passed by Appellate Bench of Small Causes Court at Bandra in Revision Application No.60 of 2008 upholding the judgment and order of the Trial Court dated 3.12.2007 passed in Execution Application No.2258 of 2006 in R.A.E.Suit No.1854 of 1970 whereby the Execution Application was allowed and respondent Company was allowed to execute the decree of eviction passed in the suit which is finally confirmed in Writ Petition No.37 of 1992 and Special Leave Petition SC (D) 33479 of 2006.

3. The applicants herein are the heirs and legal representatives of the original deceased defendant no.2 and respondents in Execution Application. The respondent hereinabove is the applicant in the Execution Application. The respondent Company herein was not a party to the suit but was joined as respondent no.13 in Appeal No.103 of 1983 filed by the original defendants challenging the eviction decree passed in the present proceeding.

Few facts of the matter are as under:

4. R.A.E.Suit No.1854 of 1970 was decreed by the trial court by judgment and order dt.23.11.1982. Appeal No.103 of 1983 preferred by org.defendants against the judgment and order of the trial court was dismissed on 7.10.1991. Writ Petition No.37 of 1992 filed by them was also dismissed on 5.10.2006. The said order was challenged by the applicants/tenant preferring SLP. The SLP was also dismissed. Thereafter the respondent filed Execution Application No.2258 of 2006 for possession of the suit premises i.e. Shop no.4, House No.96, Erla-Kadri Park, Vile-Parle (West), Mumbai 400 056. The said Execution Application was opposed by the applicant tenants on several grounds including the ground that the respondents were not original parties in the present proceedings. They purchased the suit property by conveyance dt.14.7.1985 and therefore, the respondents have no right to file Execution Application in a decree which was passed on the ground of arrears of rent. That application was rejected by the Executing Court by order dt.3.12.2007. Hence, petitioners tenants preferred Revision Application No.60 of 2008. That was also dismissed by the Appellate Bench of Small Causes Court by oral judgment dt.27th / 28th November, 2008. Hence, the present Civil Revision Application.

5. The learned counsel for the petitioners submits that the impugned judgment passed by appellate Bench of Small Causes Court dated 27th / 28th November, 2008 in Revision Application No.60 of 2008 confirming the order passed by Small Causes Court dated 3.12.2007 in Execution Application No.2258 of 2006 is against justice, equity and good conscious and same is liable to be set aside. He submits that initially when original plaintiff filed Suit against org.defendant on the ground of arrears of rent and sub-letting, that time the respondents were not the parties. That suit was decreed by the trial court. Against that, the tenants preferred Appeal. That appeal was partly allowed and decree passed by trial court on the ground of arrears of rent confirmed. He submits that initially when the decree was passed the respondents were not the parties in the present proceeding. They purchased the suit property by conveyance deed dt.14.7.1985. Therefore, the respondents have no right to execute the decree of eviction which was passed on the ground of arrears of rent. He further submits that even bare reading of conveyance deed dt.14.7.1985 in favour of respondents show that they have no right to recover the rent from the petitioners org.tenants. He further submits that these facts are not considered by the courts below and erred in coming to the conclusion that the respondents stepped into the shoes of org.plaintiff. He further submits that in view of section 109 of Transfer of Property Act, subsequent purchasers have no right to recover the rent from the tenant unless and until there is a specific provision to that effect. He submits that in the present proceeding, there is no specific provision in conveyance deed dt.14.7.1985 giving the power to the respondents to recover the rent. Therefore, the respondents have no right to recover the rent, they have no right to recover possession on the basis of the decree which was passed for arrears of rent. He further submits that the decree passed by the trial court in R.A.E. Suit No.1854 of 1970 was neither assigned in favour of respondents nor transferred by operation of law. He submits that in view of these facts under Order XXI Rule 16 of the Civil Procedure code, the respondents have no right to execute the decree. In support of this contention, the learned counsel for the petitioner relies on the judgment in the matter of Ram Tahal Modi vs. Ratan Lal AIR 1969 PATNA 13. In this authority, the Patna High Court held that unless and until specific rights are given to the parties they cannot recover rent as per section 109 of the Transfer of Property Act 1882. He also relies on the judgment in the matter of Champabai Manilal Shah and another vs. Anandrao Ramchandra Patil and another 1993 (3) BCR 305. In this authority also, our High Court held that unless and until there is specific provision in the documents allowing transferee to recover the arrears of rent as provided under section 109 of the Transfer of Property Act, the transferee is not entitled to recover the past arrears.

6. On the basis of these submissions, the learned counsel for the petitioners submits that the respondents who are subsequent purchasers of the suit property have no right to file Execution Application as contemplated by Order XXI Rule 16 of the Civil Procedure Code. Hence, the judgment and decree passed by Appellate Bench of Small Causes Court as well as Executing Court should be set aside and Execution Application filed by respondents bearing No.2258 of 2006 be dismissed with costs.

7. On the other hand, the learned Sr.Counsel for the respondents vehemently opposed the present Civil Revision Application. He submits that both the courts below concurrently held that the respondents being subsequent purchasers of the suit property have right to execute the decree passed by trial court for possession of the suit property on the ground of arrears of rent. He submits that the respondents purchased the suit property by conveyance deed dt.14.7.1985. Being subsequent purchasers, the respondents stepped into the shoes of original decree holder. Hence, subsequent purchaser can file appropriate application for execution of decree as contemplated under section 146 read with Order XXI Rule 16 of the Code of Civil Procedure. He submits that the decree passed against the petitioners was confirmed by the Apex court and for the first time the petitioners have raised such type of objection before this court about the maintainability of the Execution Application.

8. The learned Senior Counsel for the respondents submits that bare reading of section 146 with Order XXI Rule 16 of the Civil Procedure Code makes it clear that the subsequent purchaser has right to file Execution Application and same is maintainable in law. In support of this contention, he relies on the judgment of the Apex Court in the matter of Jugalkishore Saraf v. M/s.Raw Cotton Co.Ltd. AIR 1955 SC 376 particularly paragraph 37, 38 and 59. The learned Senior Counsel for the respondent relies on the authority of the Apex Court in the matter of Zilla Singh and others v. Hazari and Others (1979) 3 SCC 265. He submits that the Apex Court in the matter of Zilla Singh and others v. Hazari and Others (Supra) categorically held that the subsequent vendee can avail of section 146 of the Code of Civil Procedure and maintain an application for execution of the decree. He relies on paragraph 9 and 10 which reads thus:

"9 The next contention is that the deed evidencing the sale of lands Ext. D1 dated 15th February, 1963 merely transferred the lands but does not purport to assign the decree, then in the absence of such an assignment the purported assignee cannot execute the decree in view of the provisions contained in Order XXI, Rule 16, and therefore, the execution applications at the instance of the present appellants are not maintainable. The Additional District Judge did not decide the contention whether the Execution Applications at the instance of the present appellants, (namely, subsequent transferees is maintainable under Order XXI, Rule 16, because in his opinion the present appellants were entitled to execute the decree under Section 146 of the CPC. The majority view of the High Court is that the subsequent transferees, the present appellants, were not entitled to execute the decree under Order XXI, Rule 16 because the decree for pre-emption being a personal one cannot be assigned and alternatively if it could be assigned, as a matter of fact, it has not been assigned and therefore the applications for execution at their instance are not maintainable. They were further of the view that Section 146 would not assist the appellants as provisions contained in Order XXI, Rule 16 being a specific contrary provisions, Section 146 cannot be invoked."

"10 Order XXI, Rule 16 permits an execution of a decree at the instance of an assignee by transfer of a decree, the assignment may be in writing or by operation of law and if such an application is made, the court to which an application is made shall issue a notice to the transferee of the decree and the judgment debtor and the decree cannot be executed until the Court hear their objections, if any, to its execution. Section 47 C.P.C. provides that all questions arising between the parties to the suit in which the decree was passed, or their representatives, relating to the execution, discharge or satisfaction of the decree shall be determined by the court executing the decree and not by a separate suit. Explanation appended to Section 47 provides that for the purposes of that section amongst others a purchaser at a sale in execution of the decree is deemed to be a party to the suit. It would have been interesting to examine the question whether the purchaser of land from a preemptor in whose favour a decree for preemption has been passed and who subsequent to the decree complied with the requirement of Order XX, Rule 14 and thereby perfected his title would be, on the analogy of a purchaser at a sale in execution of a decree, a party to the suit or at any rate the representative of the decreeholder or a successor in interest of the decreeholder, but as we are of the opinion that the applications for execution filed by the present appellants are maintainable under Section 146 C.P.C. the larger question need not be decided in these appeals."

9. On the basis of these submissions the learned Senior Counsel for the respondents submits that there is no substance in the present Civil Revision Application and same needs to be dismissed with costs. He further submits that even the Apex Court in catena of judgments held that the concurrent findings of facts recorded by the courts below normally should not be disturbed under Revision Application filed under section 115 of the Code of Civil Procedure.

10. I have heard both the sides at length. I have gone through the copy of Execution Application filed by respondents, judgment and decree passed by Small Causes Court in R.A.E. Suit No.1854 of 1970, judgment and order dt.23.11.1982 in Appeal No.103 of 1983, order dt.5.10.2006 passed by this court in Writ Petition No.37 of 1992, order dt.12.1.2007 passed by Apex Court in the matter of SLP, order dt.3.12.2007 passed by Small Causes Court in Execution Application No.2258 of 2006 and order dt.27th and 28th November, 2008 passed by the appellate bench of the Small Causes Court in Revision Application No.60 of 2008. I have also gone through several documents placed on record by the parties including conveyance deed dt.14.7.1985 by which the suit property was transferred in the name of the respondent as an owner. Considering the submissions made by both the counsel at length the point involved in the present Writ Petition is "Whether the subsequent purchaser can execute the decree for possession passed under the Bombay Rent Act on the ground of arrears of rent."

11. In the present proceeding, decree for eviction passed by the trial court on the ground of arrears of rent was confirmed by the Appellate court. Thereafter, the respondent purchased the suit property by conveyance deed dt.14.7.1985 during the pendency of appeal. Being the owner of the suit property, they preferred Execution Application under Order XXI Rule II of the Code of Civil Procedure on 24.11.2006. In column 10 of that Execution Application, the respondent asked assistance of the court for executing the decree by issuing warrant of possession against the applicant tenant and directing bailiff to hand over physical possession of the suit premises to them. Therefore, the question is whether the respondent can file Execution Application for possession of the suit property. Before discussing the said point, it is necessary to reproduce section 146, Order XXI Rule 2 of the Code of Civil Procedure and Section 109 of the Transfer of Property Act.

"146. Proceedings by or against representatives- Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him."

Order XXI Rule 2 of the Civil Procedure Code reads thus:

2. Payment out of court to decree holder.- (1) Where any money payable under a decree of any kind is paid out of the court, or a decree of any kind is otherwise adjusted in whole or in part to the satisfaction of the decree holder, the decree holder shall certify such payment or adjustment to the court whose duty it is to execute the decree, and the court shall record the same accordingly.

(2) The judgment debtor or any person who has become surety for the judgment debtor also may inform the court of such payment or adjustment, and apply to the court to issue a notice to the decree holder to show cause, on a day to be fixed by the court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree holder fails to show cause why the payment or adjustment should not be recorded as certified, the court shall record the same accordingly.

(2A) No payment or adjustment shall be recorded at the instance of the judgment debtor unless-

(a) the payment is made in the manner, provided in rule 1; or

(b) the payment or adjustment is proved by documentary evidence; or

(c) the payment or adjustment, is admitted by, or on behalf of, the decree holder in his reply to the notice given under sub-rule (2) of rule 1, or before the court.

(3) A payment or adjustment which has not been certified or recorded as aforesaid, shall not be recognised by any court executing the decree."

Section 109 in The Transfer of Property Act, 1882

"109. Rights of lessor's transferee.-If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him: Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee. The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased."

12. Bare reading of section 109 of the Transfer of Property Act shows the right of purchaser for recovery of previous rent is subject to the terms and conditions of sale deed/conveyance. Section 146 of the Code of Civil Procedure shows that if the rights are purchased by third party after passing the decree, they have right to file execution application for the fruits of the said decree but same depends upon which type of decree was passed by the court. If the decree is in the nature of personal right then that cannot be executable. But if it is in respect of immovable property, that can. Not only that even bare reading of Order XXI Rule 16 of the Code of Civil Procedure shows that subsequent purchaser / owner can execute the decree in respect of immovable property. The explanation to this Rule 16 reads thus:

"Nothing in this rule shall effect the provisions of section 146, and a transferee of rights in the property, which is the subject-matter of the suit may apply for execution of the decree without a separate assignment of the decree".

13. This shows that it is not necessary that the decree holder should assign the decree in favour of subsequent purchaser. The subsequent purchaser who purchases the said property in respect of which decree has been passed, acquired the right to execute the decree.

14. In the present proceeding, the respondents purchased the suit property on 14.7.1985 and they stepped into the shoes of the decree holder. That decree is passed on the ground of arrears of rent. The respondent gets right to recover the possession in view of subsequent development and section 146 of the Code of Civil Procedure. The objection raised by the petitioner that in view of section 109 of the Transfer of Property Act, respondents could not get right to execute decree is not sustainable in law. Section 109 of Transfer of Property Act is very clear that subject to the terms and condition of instrument/sale deed/conveyance, the transferee gets right to recover the rent. In the present proceeding in hand, it is crystal clear from the Execution Application filed by respondent that, they asked the assistance of the Court for executing the decree for possession and not for recovery of arrears of rent or any other relief. The authorities cited by the petitioner in the matter of Ram Tahal Modi vs. Ratan Lal (Supra) and Champabai Manilal Shah and another vs. Anandrao Ramchandra Patil and another (Supra) are not applicable in the facts and circumstances of the present case. Both these authorities are in respect of scope of section 109 of the Transfer of Property Act. The authority cited by the learned Senior Counsel for the respondent subsequent purchaser in the matter of Jugalkishore Saraf v. M/s.Raw Cotton Co.Ltd. (Supra) is applicable in all force. The Apex Court in the matter of Zilla Singh and others v. Hazari and Others (Supra) specifically held that the pre-emptor decree-holder after perfecting his title to the suit land by complying with Rule 14 of Order 20 sells the property to a subsequent vendee, such vendee, can avail section 146 and maintain an application for execution of the decree. In similar way, the Madras High Court in the matter of Gnanasundaram and another v. Murugesa Naicker AIR 1989 MADRAS 343 held that the transferee is entitled to file Execution Application for recovery of the possession. Paragraph 4 and 5 of that authority reads thus:

"4 Learned counsel for the appellants merely submitted that the Explanation to Rule 16 of Order 21, C.P.C. was added by Amendment Act 104 of 1976 and it was repealed and that the Explanation cannot be taken to undermine the meaning of the main section. I do not find any merit in the said contention. There is absolutely nothing to show that the Amendment Act 104 of 1976 was repealed. Since the amendment was carried out in the main Act, the separate Act was considered to be repealed as superfluous. In the circumstances, it cannot be said that the Explanation has no weight, it cannot also be said that the Explanation takes away the effect and purport of the main rule. It is only an explanatory note to Rule 16. In view of the main provision in Rule 16, it is provided that a transferee of rights in the property, which is the subject matter of the suit, may apply for execution of the decree without a separate assignment of the decree, on the ground that the said document is unnecessary in view of the conveyance deed already obtained by him. There is absolutely nothing to show that the Explanation runs counter to the main rule and as such it has ho effect."

"5 As regards the second contention that only a decree-holder or an auction purchaser can maintain a petition under Order 21, Rule 97, C.P.C. it is seen that under Section 146, the proceeding may be taken by the person claiming under the decree-holder except as otherwise provided by the Code. The Explanation to Rule 16 of Order 21, C.P.C. says that a transferee of rights in the property which is the subject-matter of the suit may apply for execution of the decree without a separate assignment of the decree as required by the rule. When once a person steps into the shoes of the decree-holder and becomes the holder of the decree, he is entitled to take all the incidental applications including the one under Order 21, Rule 97, C.P.C. Hence this contention also fails."

15. Plain reading of section 146 read with explanation to Order XXI Rule 16 of the Civil Procedure Code makes legal position crystal clear that the respondent who is a transferee of the property which is subject matter of the decree in execution is entitled to apply for execution of the decree without a separate assignment thereof since he claims to have lawfully acquired the property through the decree holder who was its original owner. Therefore, evidently, there is no substance in the aforesaid objections raised by the judgment debtor (petitioner) to the execution of the said decree.

16. Considering the above facts and the law declared by the Apex court and Madras High Court, I am of the opinion that the respondent, subsequent purchaser, is entitled to execute the decree and recover possession according to law. Consequently, there is no substance in this Civil Revision Application. Hence, following order:

a Rule discharged.

b Civil Revision Application No.112 of 2009 stands dismissed.

c Ad-interim relief granted by this court on 18.02.2010 stands vacated.

17. At this stage, the learned counsel appearing on behalf of appellant seeks stay of this order. Considering the facts and circumstances of the present matter, the operation and implementation of this order is stayed for four weeks from today.

Ordered accordingly.