ORDER
K.M. Natarajan, J.
1. This revision is directed against the order passed by the district Munsif, Ootacamund, allowing the application E.A. No. 8 of 1984, under Section 47, C.P.C.
2. The facts which are necessary for the disposal of the revision can be briefly stated as follows: The revision petitioner herein obtained a decree for recovery of the same (sic). The respondent herein, who is the defendant in the suit, filed the petition under Section 47 read with Section 151, C.P.C. contending that in the written statement filed by him in O.S. No. 203 of 1974 he has specifically pleaded that he is entitled to the benefits of the Tamil Nadu Buildings (Lease and Rent Control) Act and that the remedy of the revision petitioner herein is to proceed against him for eviction before the Rent Controller. The said plea was not accepted by trial court as well as the District Court. However, in A.S. No. 1153 of 1978, this Court observed that the executability of the decree passed in the matter will have to be consid ered by the executing Court. It is stated that the construction of the building in question was completed by 1.4.197l and has the same was assessed to property tax with effect from the said date. The period of five years given in the Tamil Nadu Buildings (Lease and Rent Control) Act exempting from the operation of the provisions of the said Act so far as new buildings are concerned, expired with effect from 31-3-1976. Hence, from 1-4-1976, he has become the statutory tenant under the Tamil Nadu Buildings (Lease and Rent Control) Act and is entitled to the benefits of the said Act. According to him, therefore, the decree in O.S. No. 203 of 1974, passed on 19-6-1976 is not executable by virtue of the provisions of Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act, and as such, he is not liable to be evicted and that he is entitled to continue in possession.
3. The said application was resisted by the revision petitioner herein and he inter alia contended that the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, as amended by Act 23 of 1973, are not applicable in executing the decree for possession dated 19-6-1976, which was confirmed by the District Court as well as the High Court. It is further stated that the building in question was exempted under Section 30(1),of the Act, and that the suit itself was filed on 12-7-1974, after the commencement of the amended Act and it ended in a valid decree. There was no change of law by way of further amendment of the Act. Though the decree was passed subsequent to the expiry of five years period, the same has not the effect of rendering the suit incompetent or nullifying the decree passed therein or adversely affecting its executability. Hence, there is no bar in executing the decree for recovery of possession. The right of the revision petitioner is a vested one and that there is no provision in the Madras Buidlings (Lease and Rent Control) Act, to take away that right. The tenancy was terminated by a valid notice and the suit has been filed for recovery of possession. The revision petitioner was also awarded a decree for damages for use and occupation. The respondent did not have the status of tenant from 1-5-1974 and the suit was filed on 12-7-1974. Hence he prayed for dismissal of the application.
4. The District Munsif accepting the case of the respondent-tenant held that the revision petitioner herein, who is the decree holder, is not entitled to execute the decree in view of the specific provision contained in Section 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act and consequently allowed the application. Hence, the aggrieved decree holder, the revision petitioner herein, has preferred this revision.
5. The only question that arises for consideration in this revision is whether the plaintiff is entitled to execute the decree for ejectment, since the period of five years from the date of/notification of the building expired by the time when the execution petition is filed.
6. The lower Court relied on the decisions of this Court reported in Tahali Vadivu Anandar v. Venugopala Chettiar and Chand Basha v. Payribi and Krishnaswami v.Resheeda,(l980) 2 M.L.J. 463 : 93 L.W. 378, held that the revision petitioner herein is not entitled to execute the decree and evict the respondent in view of the specific provisions contained in Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act. The lower Court did not follow the ruling rendered by a single Judge of this Court reported in Arunachala v. Kesava Chettiar , which is contrary to the above rulings. I had also an occasion to consider similar question in Akka Naicker v. Rajagopalammal, 1985 T.L.N.J. 162 and relied on the decision of the Supreme Court reported in Vineet Kumar v. Mongol Sain Wadhera and held, that the decree was not executable. Nainar Sundaram, j., took the same view in the Madras Wines v. B Abraham, 1985 T.L.N. J. 89: 98 L.W. 373.
7. The learned Counsel for the revision petitioner drew my attention to the decision in S.N. Kuba v. P.P.I. Vaithianathan, 1988 T.L.N. J.1 where in a Division Bench of this Court held that the above decision rendered by us have been obviated by a later decision of the Supreme Court in Nand Kishore Marwah v. Samundri Devi . In that case Nand Kishore v. Samundri Devi , a Bench of two Judges have taken the view that the decision of a Bench of three Judges in Om Prakash Gupta v. Dig Vijen-drapal Gupta (sic). It was held in the latter case, that the expiry of the period of exemption of ten years under the U.P. Urban Buildings Regulation (Letting, Rent and Eviction) Act, 1972, would not affect the rights of parties and the landlord was entitled to obtain a decree in the suit which could be executed. The view that rights of the paties will be determined on the basis of the rights available to them.The above decision of the Bench of this Court S.N.Kuba v. PP.I. Vaithianathan, 1988 T.L.N.J. 1 arose in a revision challenging the executability of a decree for possession passed against him on the basis of a compromise, evidenced by a joint endorsement made by the parties on the plaint in the suit after the pronouncement of the Supreme Court on 16-4-1988 striking down Section 30(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, as violative of Article 14 of the Constitution of India.It was held in the above decision, that the tenant is not entitled to the protection of the Act and the order of the executing Court directing delivery of possession cannot be said to be erroneous, and it Was held that the executing Court is well within the jurisdiction in directing delivery of possession. In Nand Kishore Marwah v. Samundri Devi it was held:
Within 10 years as provided for in Section 2(2) restriction on the institution of suit as provided for in Section 20(1) will not be applicable. Therefore, during the pendency of the litigation even if ten years expired the restric-tion under Section 20 will not be attracted as the suit had been instituted within ten years. It is well settled that the rights of the parties will be determined on the basis of the rights available to them on the date of the suit.
In this case, the decision reported in Vineet Kumar v. Mangal Sain Wadhera , was dissented from. That was a case which arose under U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972. It is clear from the above decisions that the rights of parties will be determined on the basis of the rights available to them on the date of the filing of the suit and not on the date when the execution is made. The earliest decision reported in Om Prakash Gupta v. Dig Vijendrapal Gupta , a case rendered by three Judges, wherein a similar view taken was relied on while dissenting the decision rendered in Vineet Kumar v. Mangal Sain Wadhera . It is only on the basis of these decisions, the learned Counsel for the revision petitioner submitted that the order passed by the Court below is not sustainable, that it has to be set side and that the executing Court should be directed, to proceed with the execution”
8. I find much force in the contention, of the learned Counsel for the revision petitioner in two respects. It is clear from the decision of the larger Bench of the Supreme Court reported in Om Prakash Gupta v. Dig Vijendrapal Gupta , referred to above, that when the Act itself is not applicable to a particular building, it cannot be said that Section 10 would be applicable. In the above quoted, decision which is under the U.P.Urban Building (Regulation of Letting Rent and Eviction) Act, 1972, it was held.’
In order to attract Section 39, the suit must be pending on the date of commencement of the Act, which is the 15th July, 1972; but the suit giving rise to the present appeal Was filed on 23rd March, 1974 long after the commencement of the Act. There is yet another reason why Section 39 will, have no application to the present case. In view of Sub-section (2) of Section 2 of the Act, the Act isnot applicable to a building which has not standing of ten years, and if the Act itself was nbt applicable, it Would be absurd to say that Section 39 thereof would be applicable.
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 Deyi , and also of a Division Bench of this Court re-: ported in S.M Gupta v. P.P.I. Vaithianathan, 1988 T.L.N.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. On both the grounds, the revision is to be allowed. In the face of the above decisions of the Supreme Court which have been followed by this Court, the ear-lier decision relied on by the learned Counsel for the respondent and also by the lower Court reported in Vineet Kumar v. Mangal Sain Wadhera , Tahali Vadivu Anandar v. Venugopala Chettiar , Krishnaswami v. Rasheeda , HajeeAbdulia Sail v. Mohandas, 90 L.W. 573, Chand Basha v. Pyaribi , Nanda Rao v. Lakshmanasami Mudaliar (1969) 1 M.L J.153, and B.V.Patankab v. C. G. Sastry , are of no avail and they cannot be relied on. It is also pointed out by the learned Counsel for the petitioner that in the decision of Venkataraman Reddiar v. Abdul Ghani (1980) 2 M.L J. 179, the reference made to the Full Bench is only on the question whether a tenant inducted into possession by an usufructuary mortgagee of non-agricultural property can claim the benefits of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, as against the mortgagor, after the redemption of the mortgage, and, this question is not the subject matter of the said decision of the Full Bench, However, by way of observation and obiter dietum at the end of the judgment, without reference to Section 30 of the Act, is generally observed-
It is by now well settled that there is nothing in Section 10 of the Act, prohibiting the institution of a suit for possession, or prohibiting a civil court from passing a decree for possession. What is prohibited under the section is only the exertion of a decree for ejectment passed by a civil Court.
That is only in consonance with Section 10 of the Act.. The question now arises for consideration in this revision is, whether in respect of a building for a period of five years from the date on which the construction is made, the Act, is not applicable. That question was not at all considered in the said decision and no finding is rendered. Hence, the decisions relied on by the learned Counsel for the respondent cannot prevail over the latest decisions of the Supreme Court and the Division Bench of this Court and that they are no longer good law (including decisions rendered by me in Akkanaicker v. Rajagopala, 1985 T.L.N.J. 162, and that of Nainar Sundaram, J. in the Madras Wines v. Abraham, 1985 T.L.N.J. 89 : 98 L.W. 373. For all these reasons the revision is allowed. The order passed by the Court below is set aside and EA. No. 8 of 1984 filed by the respondent is dismissed and the Court below is directed to proceed further with the execution petition and dispose of the same as expeditiously as possible. However, in the circumstances pf the case, there will be no order as to costs.