S. Jagadeesan, J.
1. Since the matter arises under execution, with the consent of both the counsel, the civil revision petition has been taken up for final disposal.
2. The respondent herein filed a suit O.S. No. 11723 of 1988 on the file of the X Assistant City Civil Judge, Madras for recovery of possession. His case is that the construction of the building was completed in the year 1984 and it was leased out to the petitioner herein on 3.2.1987. Since the petitioner requires the building for his won occupation, he has filed a suit. He cannot initiate the eviction proceedings under the Tamil Nadu Buildings (Lease and Rent Control) Act, in view of the exemption granted under Section 30 of the said Act, i.e., for the building which is less than five years old. The petitioner filed a written statement stating that the court has no jurisdiction to entertain the suit and the respondent has to initiate the eviction proceedings only under the Tamil nadu Buildings (Lease and Rent Control) Act. The exemption claimed under Section 30 of the said Act is not available to the respondent, since the building was completed as early, as 1982. The petitioner has paid the arrears of tax for the half years 1/85-86 and 2/87-88 to the tune of Rs. 3,914.70 and as such the petitioner has deducted the property tax and paid the balance. He has also raised other pleas with which we are not concerned for the disposal of this C.R.P. The said suit was decreed ex parte on 1.3.1991. The respondent filed E.P. No. 3498 of 1993 to execute the said decree. In the execution proceedings, the petitioner has filed an application E.A. No. 308 of 1996 under Section 47 of the C.P.C. seeking for a declaration that the decree in O.S. No. 11723 of 1988 dated 1.3.1991 is nullity and as such it is inexecutable, contending that the civil court has no jurisdiction to try the suit as the exemption granted under Section 30 of the Tamil Nadu Buildings ((Lease and Rent Control) Act is inapplicable to the building. Further even though the notice under Section 106 of the Transfer of Property Act terminating the lease had been issued on 28.9.1988, subsequently the rent has been deducted from the advance amount paid by the petitioner and hence the notice of termination of lease is invalid. By virtue of the conduct of the respondent in deducting the arrears and deducting the rent from out of the advance amount, the landlord has waived the termination of lease. The executing court by order dated 22.11.1996 dismissed the said E.A. No. 308 of 1996. Aggrieved by the same, the present revision has been filed.
3. Mr. R. Thiagarajan, learned Counsel for the petitioner raised the following points in the C.R.P.
(a) Since the building is more than five years old, the exemption claimed by the respondent under Section 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act has no application and as such the suit is not maintainable.
(b) Since the building is more than five years old, and admittedly there is the landlord and tenant relationship, the eviction can be sought for only under the Tamil Nadu Buildings ((Lease and Rent Control) Act before the appropriate authority, hence the civil suit is not maintainable.
(c) The petitioner having filed the written statement unfortunately remained ex parte and the ex parte order of eviction has been passed. Since the civil court has no jurisdiction to entertain the suit and as such the decree passed in the said suit is nullity and hence the same cannot be executed.
(d) Even though the objections that are raised in the application filed under Section 47 of the C.P.C. are the same as in the written statement, the principles of res judicata will not apply because the decree is only an ex parte decree and the issues had not been decided on merits.
(e) Even assuming that the suit is maintainable, still the decree cannot be executed because there is no valid termination of notice as required under Section 106 of the Transfer of Property Act, since the respondent had waived the notice by deducting the rents for the subsequent periods from out of the advance amount paid by the petitioner and the rent having been received till date.
(f) Even though the petitioner has filed an application for setting aside the ex parte decree and the same was dismissed, the said order was confirmed in appeal, still it would not bar the petitioner from raising the plea before the executing court regarding the executability of the decree.
(g) Even assuming that the suit is maintainable on the date of filing of the suit, since the building was exempted under Section 30 of the Tamil Nadu Buildings ((Lease and Rent Control) Act on the date when the decree was passed, the building cannot attract such exemption and as such the decree is nulity.
4. On the contrary, Mr. G. Rajagopalan the learned Counsel for the respondent contended that the ex parte decree also attracts Section 11 of the C.P.C. and the said decree would attract the principles of res judicata in the subsequent proceedings and as such it is not open to the petitioner at this stage to challenge the ex parte decree by way of an application under Section 47 of the Civil Procedure Code. Now the petitioner is seeking a re trial under Section 47 of the C.P.C. because on the objections raised by the petitioner, it has to be found out as to whether the building attracts the exemption under Section 30 of the Tamil Nadu Buildings ((Lease and Rent Control) Act. Virtually if the objections raised by the petitioner at this stage are entertained, impliedly it will amount to setting aside of the ex parte decree and trying the suit afresh. Hence the court below has rightly dismissed the petition and there is no error of jurisdiction in the order of the court below.
5. I have carefully considered the contentions of both counsel.
6. It would be pertinent to note that the petitioner has raised the objections with regard to the maintainability of the suit in the written statement. He has disputed the plea of the respondent that the exemption under Section 30 of the Tamil Nadu Buildings ((Lease and Rent Control) Act is applicable to the present petition mentioned premises. There is no dispute that the suit had been decreed ex parte on 1.3.1991. The petitioner had filed an application for setting aside the ex parte decree and the same was dismissed, as against which the petitioner preferred an appeal and that was also dismissed. Hence, the ex parte decree has become final.
7. The main contention of the learned Counsel for the petitioner is that the decree is a nullity and as such the same cannot be executed. The two reasons given by the learned Counsel for the petitioner to claim that the decree is nullity, are:
(a) The civil court has no jurisdiction to try the suit in view of the non-availability of the exemption under Section 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act for the suit premises and
(b) There is no proper termination of tenancy in accordance with Section 106 of the Transfer of Property Act as the termination has been impliedly given up or is waived by the respondent, in view of the adjustment of the rents from out of the advance amount paid by the petitioner subsequent to the issue of the notice of termination.
The learned Counsel for the petitioner referred to the following judgments reported in Sundar Dass v. Ram Prakash , Sabitri Devi and Ors. v. Sarat Chandra Rout and Ors. , Jaipur Development Authority and Ameena Bi v.
Kuppuswami Naidu , in support of his contention that a decree which is nullity cannot be executed and the. plea of nullity can by raised when ever the decree is sought to be executed or enforced and the principle of res judicata is not applicable to a decree which is null and void. He also relied upon the judgment reported in Kiran Singh v. Chaman Paswan , in support of his contention that if a decree has been passed by the court which has no jurisdiction then such decree is nullity and non-existent in the eye of law and the same cannot be allowed to be executed. In view of the decision, going to be taken by me I do not think it is necessary to refer to these judgments in detail. Moreover there cannot be any dispute in respect of the principle that a decree which is null and void cannot be executed.
8. As pointed out already, the plea of nullity of the decree is based on the question of jurisdiction of the court. In turn, the jurisdiction of the court is based on the plea of exemption claimed by the respondent under Section 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act. In order to find out the factual position of the availability of the benefit of exemption, it is necessary to find out whether the building was five years old or not, on the date of the filing of the suit. So far as the plaint averment is concerned, the building was completed in the year 1984 and the first assessment by the Corporation authorities is in the year 1988. Though the petitioner had disputed the fact of completion of the building in the year 1984 and specifically sated that the construction of the building was over in the year 1982, the burden is on him to establish the fact. The plaintiff has produced the first assessment order and the lease deed of the year 1987. The petitioner has suffered an ex parte decree. When the petitioner had been put on notice in respect of the plea raised by the plaintiff and the petitioner having filed the written statement contesting the claim of the plaintiff, but remained ex parte and suffered an ex parte decree would attract the principle of res judicata in the subsequent proceedings or at a later stage of the same proceeding. When once the principle of res judicata is attracted, then the question of nullity of the decree depends upon the facts of a particular case. In this case, the only claim is the non-availability of the benefit of exemption under Section 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act. This factual dispute having been raised by the petitioner in the written statement, he has remained out of court and allowed an ex parte decree to be passed. When the application filed by the petitioner for setting aside the ex parte decree had been dismissed and the same having been confirmed on appeal, it means that the petitioner had remained ex parte without any sufficient cause. Under such circumstances, the court can draw inference that having found that there is no merit in the defence raised by the petitioner, he wanted to remain ex parte and thereafter to protract the proceedings by filing an application for setting aside the ex parte decree and so on. It may be worthwhile to refer to some of the judgments wherein the ex parte decree has attracted the principles of res judicata in the subsequent proceedings.
(a) Newton v. Official Trustee :
(17) Mr. Roy attempted to argue, somewhat faintly, that the decrees in the former suits were ex parte decrees and therefore the decisions could at most operate as 'res judicata' or. the questions directly decided. He sought to support his argument by reference to the decision of the House of Lords in New Brunswick Railway Co. v. British and French Trust Corporation (1939) A.C. 1 (J). But the decrees were ex parte only in the sense that after filing their written statements and taking part in the proceedings for a considerable time, the appellants defaulted in appearance during the last stages.
At the stage of filing their defence and even at the stage of the respondent's application under Section 14(3), Rent Control Act, they were before the court and they did raise all such pleas as they considered to be open to them. In those circumstances, the principles laid down in - 'The New Brunswick Railway Co's case (J) (1939) A.C. 1 is excluded by the reasons which the Supreme Court gave in repelling an identical contention based on the same case in - .
Besides, it is well settled in this country that even if a decree be ex parte, it will operate as res judicata in respect of all grounds of defence against the actual claim in the suit as also all matters inconsistent with such claim which might and ought to have been raised. The question whether there were two several tenancies or only one and whether the court of small causes had jurisdiction to try a suit for ejectment against the appelants in respect of the premises in question was not merely incidental or ancillary to the respondent's claim in the previous suits but went to the very root of his claim for ejectment, as brought. In my view, it is impossible for the appellants to avoid the effect of the decisions on that question on the ground that they were absent when the decree was actually passed.
(b) The next judgment is reported in Seshi Ammal v. United India Life Insurance Co. , wherein it has been held as follows:
In order that a judgment or order passed ex parte may, on the ground of res judicata or on principles analogous res judicata, bar the hearing of a question or issue in a subsequent proceedings or at a subsequent stage of the same proceeding, it is necessary that the pleading and the prayer that led to the passing of the judgment or decree should give express notice to the opposite party that the question or issue would or might be decided by the court which deals with the matter.
(c) The next judgment is reported in Gouri Shankar v. Ram Banka , wherein it has been held as follows:
5 ...In the instant case Rs. 2,000 was required to be deposited as a condition precedent to the appellants defending the suit; and this amount admittedly not having been deposited after the original ex parte decree had been set aside, judgment was given ex parte in accordance with the provisions of Rule 4, and this became the so-called second ex parte decree. The condition precedent directing the appellant, the defendant, before the Bombay Court to deposit Rs. 2,000 was not illegal or arbitrary and in the circumstances, the ex parte decree would operate as res judicata between the parties in any subsequent suit in respect of the same subject-matter.
(d) A case reported in Ram Sagar v. Yogendranarain , wherein it has been held as follows:
It is well-settled that in order to attract the principles of res judicata as a bar in a subsequent suit, the matter must have been directly and substantially in issue in the earlier suit. In other words, a decision on the question must be necessary in order to either decree or dismiss the plaintiff's suit. A contention was, however, raised that the decree in question being ex parte , there was no occasion for the plaintiffs to raise this question and, therefore, this question could not be deemed to be heard and decided in the earlier suit. This matter has since been settled by a bench decision of this Court in the case of Habibur Rahman v. Vijay Charan Abhay Charan and Bros. , where it has been clearly laid down that the application of the doctrine of res judicata has not to depend on the decree being ex parte or contested. A party is as much bound by an ex parte decree as by a contested one.
(e) The next judgment is reported in Bramhanand Rai v. Deputy Direcotor of Consolidation , wherein it has been held as
10. In paragraph 6 of the counter affidavit this claim of the petitioners has been contested on the ground that the petitioners after obtaining a fake lease filed a collusive suit and obtained an ex parte decree but neither the lease nor the ex parte decree was ever acted upon. Thus, we find that even in the writ petition it has not been asserted that some ingredients of Section 11, C.P.C. was not satisfied. When there was no serious challenge about satisfaction of any of the five ingredients of Section 11, C.P.C, in our opinion, the non-filing of the copy of the plaint by the petitioners before the consolidation authorities is wholly immaterial. The learned Counsel for the opposite party No. 4 placed reliance on the decision of the Supreme Court in Isher Singh v. Sarwan Singh , where it was observed that the
question whether a matter was directly and substantially in issue in the former suit has to be decided (a) on the pleadings in the former suit, (b) issues struck therein, and (c) decision in the suit; and urged that it was necessary for the consolidation authorities to look into the pleadings of the parties in the earlier suit which could not be done in absence of the plaint. In out opinion, this case is of no help to opposite party No. 4. This decision only lays down that the pleadings of the parties in the earlier suit and the issues framed therein should be looked into in order to ascertain whether all the ingredients of Section 11, C.P.C. were satisfied. It does not lay down that copy of the plaint has to be invariably filed irrespective of the fact whether there is challenge from the side of the opposite party about the existence of the conditions of that section or not.
11. The claim of the opposite party that the ex parte decree was obtained in collusive proceedings can also not be sustained inasmuch as neither there is any material on record to prove that the ex parte decree was obtained in collusive proceedings nor this ground can be permitted to be urged in these proceedings. It is now well-settled that the original decree or judgment must be taken to be subsisting and valid until it has been reversed or superseded by some ulterior proceedings. In State of West Bengal v. Hemant Kumar Bhattacharjee , the, Supreme Court observed thus:
...This argument proceeds on a fundamental misconception, as it seeks to equate an incorrect decision with a decision rendered without jurisdiction. A wrong decision by a court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides. The learned Judges of the High Court who rendered the decision on 4.4.1952 had ample jurisdiction to decide the case and the fact that their decision was on the merits erroneous as seen from the later judgment, of this Court, does not render it any less final and binding between the parties before the court. There is, thus, no substance in this contention. The decision of the High Court dated 4.4.1982 bound the parties and its legal effect remained the same whether the reason for the decision be sound or not.
In our opinion the ex parte decree dated 13.2.1951 passed in Suit No. 347 of 1951 would operate as res judicata in the present proceedings and the consolidation authorities erred in taking the contrary view.
(f) The next judgment is reported in B.N. Kawale v. D.B. Patil , wherein it has been held as follows:
4. The admitted position is that the civil court decreed the suit for eviction against the appellant holding that he was not a tenant which order had become final. The same plea of want of jural relationship is sought to be raised in execution. When the objection raised was negatived, the High Court in Writ Petition No. 3319 of 1992 by order dated November 22, 1991 directed the Executing Court to go into the question. Accordingly, this appeal by special leave came to be filed.
5. Shri Bhasme, learned Counsel for the respondents, contended that in view of the specific language employed in Section 85-A of the Bombay Tenancy and Agricultural Lands Act, 1948 the only competent authority that has to go into the question is the revenue authority under the Act and civil court has no jurisdiction to go into the question whether the appellant is a tenant or not. Therefore, the High Court was right in directing the executing court to go into the question. It is rather unfortunate that the respondent has allowed the decree holding that he is not a tenant to. become final. Having allowed it become final, it is not open to him to contend that he is still a tenant under the Act and therefore the decree is nullity. Under those circumstances, the executing court was right in refusing to entertain the objection for executing the decree. The High Court was not justified, in the circumstances, in directing the executing court to consider the objection.
9. The learned Counsel for the respondent brought to my notice two judgments namely, B.N. Kawale v. D.B. Patil which is referred to above and , wherein it has been held as follows:
Relying upon the Supreme Court decision in Ittvavira Mathai v. Varkey Varkey , Mr. Roy Chowdhury contends that it is the duty of the court to look to Section 3 of the Limitation Act before it grants a. decree. But the decree does not become void, as has been held by the Supreme Court, if the court overlooking the bar of limitation grants a decree. Such a decree may be illegal but not without jurisdiction.
11. In sprit this was the review entertained by Anil Kumar Sen and S.N. Sanyal, JJ. in a Division Bench decision in Debabrata Mukerjee v. Kalyan Kumar Ray . It was sought to be argued
that the court's decision on other issues cannot operate as res judicata since the decree of dismissal on account of want of a valid notice under Section 13(6) of the Act is without jurisdiction. In repelling the argument it was held that despite a finding as to the absence of a valid notice court had jurisdiction to decide other issues. This decision therefore lends support to Mr. Roy Chowdhury's contention that despite absence of notice court had jurisdiction to decide the suit. This decision did not overlook the decision in Subodh Chandra nor the Full Bench Decision in Gurudas 's case.
13. I am therefore in agreement with Mr. Roy Chowdhury that the ex parte decree is not assailable under Section 47 of the Code of Civil Procedure. The Munsif rightly dismissed the miscellaneous case.
10. From the above referred judgments, it is very clear that the ex parte decree would attract the principles of res judicata in accordance with Section 11 of the C.P.C. where the issues involved in the earlier and subsequent proceedings are the same and the party was put on notice about the same in the earlier proceedings. As already stated, the petitioner was fully aware about the pleadings in the plaint and he has filed the written statement disputing the averments made in the plaint. But, unfortunately, in the language of the learned Counsel for the petitioner, the petitioner remained ex parte. The proceedings initiated for setting aside the ex parte decree also ended adverse to him. In such case, it is not open to him to raise the same plea by way of an application under Section 47 of the C.P.C. In view of the above finding it cannot be said that the decree is a nullity.
11. The other question that remains for consideration is whether the respondent has waived the notice under Section 106 of the Transfer of Property Act and as such there is no valid termination of tenancy. The only ground on which the waiver is pleaded by the learned Counsel for the petitioner is, that, subsequent to the issue of notice of termination, the respondent had adjusted the rents from out of the advance amount paid by the petitioner. In view of such adjustment, the respondent has waived the notice of termination. So far as this question is concerned there cannot be any dispute that so long as the tenant is in occupation and enjoyment of the property, he has to pay the rent to the landlord. After the issue of notice of termination, the landlord has started adjusting the advance amount towards the rents due from the tenant. Otherwise, the advance amount has to be kept in tact and the landlord has to accept the rent from the tenant every month. In either way, the tenant, is liable to pay the rent and by mere adjusting the same from out of the advance amount, it cannot be said that the landlord has waivec the notice of termination. If that is to be accepted, then the payment of rent subsequent to the notice of termination will also have to be construed as waiver of notice. Unless there is anything to show on record that the parties had agreed for a fresh lease for the future period, the plea of waiver cannot be permitted to be put forth. It also cannot be accepted.
12. Further it could be seen that the notice of termination was dated 28.9.1988. The petitioner had filed the written statement, some time, in July, 1989. In the written statement the specific plea of the validity of the termination notice has been raised. Since there is nothing on record to show that either the adjustment of the rent from out of the advance amount paid by the petitioner or the payment of rent for the subsequent periods till the date, by the petitioner is pursuant to any fresh agreement or the contract between the parties, the plea of waiver cannot be countenanced. Apart from this, the petitioner having raised the plea of waiver and having remained ex parte and as stated already, the ex parte decree is valid, now by way of an application under Section 47 of the above said act, it is not open to the petitioner to raise any such plea as the same would attract the principles of res judicata.
13. The further contention of the learned Counsel for the petitioner is that even assuming, without admitting for the purpose of argument sake, that the suit is maintainable and the civil court has jurisdiction on the date of the filing of the suit, the benefit of exemption under Section 3() of the Tamil Nadu Buildings (Lease and Rent Control) Act had lapsed on the date of the passing of the decree, the decree has become inexecutable. The learned Counsel relied upon the judgment reported in Vineet Kumar v. Mangal Sain Wadhera ,
where the learned Judges have held that though the eviction suit had been filed by the landlord within the exempted period, and such exemption period expired during the pendency of the litigation, then the Rent Control Act become operative and the decree cannot be executed. To extract the relevant passage is as follows:
14. The trial court, however, relying on a recent decision of this Court in Om Prakash Gupta v. Dig Vijendrapal Gupta refused to apply the new Rent Act to the building in question. In that case a contention was raised that the building will be deemed to have been constructed on the date of occupation on June 16, 1967 and not on the date of the first assessment and if that be so, the appellant would be entitled to the benefit of Section 39 of the Act on the date when the revision came to be decided by the High Court on March 23, 1978. This Court, however, held that it is the date of the first assessment which will be deemed to be the date of completion of the construction in the circumstances of the case and in that view of the matter the building had not become more than ten years old on the date when the revision came to be decided by the High Court and, therefore, there was no question of giving the benefit of Section 39 of the Act to the appellant. It was not at all necessary in that case to deal with the question whether the appellant would be entitled to the benefit of Section 39 as the building had not become ten years old on the date when the revision petition was heard. In the instant case, however, the building had become more than ten years old during the pendency of the litigation and, therefore, the question assumes importance in the present case.
15. It may be argued that the court had to decide the case on the basis of cause of action that accrued prior to the date of filing the suit and not on a new cause of action, but this question need not detain us as it is covered by decision of this Court in Pasupuleti Venkateswarlu v. Motor and General Traders. Dealing with a similar question this Court observed:
It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stulitify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is not violated, with a view to promote substantial justice - subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are mura. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.
14. But however the learned Counsel for the respondent referred to the judgment reported in G. Srinivasan v. K. Kanchana 1996 T.N.L.J. 488, wherein this Court has referred to the judgments reported in 1989 T.N.L.J. 59 A.I.R. 1992 Mad. III and A.I.R. 1994 S.C. 1604 and has held that the rights of the parties will have to be decided as on the date of the suit in the following words;
The only point that has to be considered in these case is whether a decree-holder/plaintiff is bound to move the Rent Control court for getting possession of the building or whether he can get possession in execution of a decree which he has obtained. The fact that the building is less than five year old on the date of suit is not disputed and on evidence it is clear that the construction was completed only in 1979. Hence nothing survives in the transferred appeal.
The abovesaid issues are no longer in dispute in view of the following decisions in . In all those decisions, it has been held that the rights of parties will have to be decided as on the date of suit and any change of circumstances thereafter, will not affect the right of the plaintiff to get possession. In all those cases, the question that came up for consideration was, when the exemption period was over during the pendency of the litigation, should the decree holder or the plaintiff move the Rent Control Court for getting possession. It was finally decided that pursuant to the decree in the civil suit itself, the decree holder/plaintiff is entitled to get possession.
15. Though the learned Counsel for the petitioner relied upon the judgment reported in Vineet Kumar v. Mongol Sain Wadhera referred to supra, the same has been dissented from by the other judgment reported in Nand Kishore Manvah v. Samudri Devi . Justice Natarajan, as he then was, had an occasion to deal with the matter elaborately in the judgment reported in Mohanlal v. Thirumalai Chettiar and held that the rights of the parties will be determined on the basis of the rights available on the date of the suit as follows:
8...It is provided under Section 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act that nothing contained in this Act shall apply to any building for a period of five years from the date on which the construction is completed and notified to the local authority concerned. It cannot be said that Section 10 of the Act is applicable after the expiry of the period of five years contemplated therein. Similarly, it was held in the above decision, which is reiterated by the latest decision of the Supreme Court reported in Nand Kishore Marwah v. Samundri Devi and also of a Division Bench of this Court reported in S.N. Gupta v. P.P.I. Vaithianathan 1988 T.N.L.J. 1, that the rights of the parties will be determined on the basis of the rights available to them on the date of the suit and not at time of execution unless there has been amendment to the act or any change in the statute. It cannot be said that the decree is inexecutable.
16. In a subsequent judgment reported in Ramesh Chandra v. III Additional District Judge , the court has confirmed the above principle as follows:
Yet another contention urged by the learned Counsel for the tenant on the strength of Vineet Kumar v. Mangal Sain Wadhera , is that inasmuch as the statutory period of ten
years expired during the pendency of the suit, the Act become applicable and the suit must be disposed of only in accordance with the provisions of the Act and in particular Sub-sec(2) of Section
20. This decision has, however been explained in a subsequent decision in Nand Kishore Marwah v. Samundri Devi , wherein it has been held that the law applicable on the date of the institution of the suit alone governs the suit and the mere fact that the statutory period of 10 years expires during the pendency of the suit/appeal/revision, the Act does not become applicable. It was held that the suit has to be tried and decided without reference to the Act. We are in respectful agreement with the view expressed in Nand Kishore Marwah.
17. In view of the latest judgment
referred in G. Srinivasan v. Kanchana 1996 T.N.L.J. 488, I am entirely in agreement with the reported judgment in 1996 T.N.L.J. 488 and find that the cause of action has to be decided only as on the date of filing of the suit and not on the date of the judgment. Hence, I do not find any merit in this point also.
18. The lower court has dismissed the application filed by the petitioner relying upon the judgment ,
wherein has been held as follows:
9. Learned Counsel for the petitioner submits that under Section 47(1), C.P.C. all questions arising between the parties to the suit in which a decree was passed, or their representatives, and 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. Learned Counsel wants me to interpret this section as meaning that nay question which is raised by a party to the suit should be considered by the executing court if it relates to execution, discharge or satisfaction of the decree. Such a wide interpretation is unsustainable. When the Section refers to all questions it only means all questions which were not raised in the suit and decided by the trial Court. If a question was raised before the trial court at the stage of trial and decided by the trial court it is not open to the parties to raise it again at the stage of execution. Similarly, 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 before the executing court.
10. In this case, the question was raised before the trial court and it was answered against the petitioner herein. I have already extracted the relevant part of the judgment of the trial court. Once that finding was arrived at by the trial court and the question was answered, it is not open to the petitioner to canvass the same before the executing court once again.
The learned Counsel for the petitioner however tried to distinguish the above said judgment contending that on facts in this case, the judgment is on merits i.e., the issues had been heard and decided by the court below and it is not an ex parte decree. Whereas the decree on hand is being an ex parte , one the principles laid down in the judgment cannot be applicable to the present case. I an unable to agree with the contention of the learned Counsel for the petitioner, since I have already held that an ex parte decree would also attract the principles of res judicata and the same depending upon the facts and circumstances of that particular case.
In this case, I have no doubt that the principle of res judicata is applicable and hence the plea put forth by the petitioner in the proceedings under Section 47 cannot be entertained.
19. If the contention of the learned Counsel for the petitioner is to be accepted, then there cannot be any finality of the matter. Further the litigants will be given an impression that as and when they like or they choose, they can knock at the doors of the court for the relief they are seeking for, irrespective of their past conduct. When a party remain ex parte and allows a decree to be passed ex parte , he cannot be permitted to assail the decree on technical grounds. As stated already, when once the party remain ex parte in the proceedings, it is open to the court to draw an inference that the party is rest assured about his baseless defence, and he is interested only in protracting the proceedings by allowing a decree to be passed ex parte and thereafter taking steps to set aside the same whereby will gain more time than he would have gained in contesting the litigation. Moreover Section 47 of C.P.C. is not meant for re-retail of the suit.
20. For all the reasons stated above, I find no merits in this civil revision petition and the same is dismissed with a cost of Rs. 5,000.
Mr. Thiagarajan, counsel for the petitioner requests six months time on behalf of his client to vacate and hand over vacant possession. It is also represented that the petitioners daughter's marriage had been fixed some time in April. Though Mr. Rajagopal, counsel for the respondent opposes the same however, magnanimously he left it to the discretion of the court considering the fact of the daughter's marriage. Hence the petitioner is granted 6 months time from today to vacate and hand over vacant possession on the following condition.
(1). The petitioner shall continue to pay the rent regularly on or before 15th of the succeeding month to the respondent.
(2). The petitioner shall file an affidavit of undertaking to vacate and hand over possession on the expiry of six months period granted by this Court, within one week from today.
If any one of the conditions is not complied with, the benefit of time granted by this Court cannot be availed by the petitioner.