Holding

An order granting six months for payment of compensation was not made under Section 4(1) of the Madras City Tenants' Protection Act, 1921 and therefore Section 4(4) did not apply.

Summary

The case arose from a lease of land in Madurai on which a theatre was built. After a compromise decree in 1955, the defendants failed to remove the superstructure and the appellants sought execution. The defendants filed applications under the Madras City Tenants' Protection Act, 1921 for compensation, which were dismissed as barred by limitation. The executing court nevertheless ordered the appellants to pay Rs. 88,940 for the superstructure, granting six months for payment. The appellants argued that this order was not made under Section 4(1) of the Act and therefore Section 4(4) (which mandates dismissal after three months) could not apply. The Supreme Court held that an order under Section 4 can be passed only on an application under Section 10(2); since the applications were dismissed, the payment order was dehors the Act and Section 4(4) was not triggered. Consequently the earlier decrees were not dismissed, the lower courts' judgments were set aside, and the appeals were allowed.

Issues considered

The order granting six months for payment of compensation was an order under Section 4(1) of the Madras City Tenants' Protection Act, 1921 or a deed outside the Act?
Whether Section 4(4) of the Act applies when the payment order is not made under Section 4(1).
Whether the limitation period for applications under Section 10(2) affects the validity of the compensation order.

Legislation cited

Madras City Tenants' Protection Act, 1921s. 10, s. 3, s. 4, s. 9
Madras City Tenants’ Protection (Amendment) Act, 1955
Presidency Small Cause Courts Act, 1882

Subjects

Madras City Tenants' Protection ActSection 4Section 10(2)Limitation periodCompensation for superstructureEjectmentLeasehold rightsExecution of decreeOrder dehors Act

Judgment

- !'I.A. MUNAVAR HUSSAIN (DEAD) BY LRS. AND ANR.
v.
A

E.R. NARAYANAN (DEAD) AND ORS.

JULY 11, 1995
B
(S.C. AGRAWAL AND MRS. SUJATA V. MANOHAR, JJ.]

Madras City Tenants' Protection Act, 1921-Sections 4, JO-Order u/s
4 can be passed only on application u/s 10(2)-No period of limitation
prescribed u/s 10(2). c
The appellant's ascendant K, in the year 1917 gave a vacant plot of
land in Madurai Town on lease to R, permitting construction to be raised
on the plot. The lessee R built a theatre on the plot. After the death of the
original lessee, on partition, the leasehold rights over the vacant land and D
the superstructure put up thereon came to the share of his son, respondent
No. 1 who sold these rights in favour of defendants 2 and 3 with an
agreement to repurchase one half of the leasehold rights which was con·
veyed to him in the year 1953. Appellant No. 1 filed a suit against respon·
dent No. 1 (defendant No. 1) and defendants 2 and 3 and others for
recovery of possession of the vacant site after removal of superstructure E
and for a mandatory injunction for removal of structure as well as for
damages for use and occupation. In the said suit compromise was arrived
at between appellant No. 1 and defendants 1, 2, 3 and 6. A decree was
passed in 1955 whereunder defendants 1, 2, 3, and 5 agreed to deliver the
possession of the suit properties after removing the superstructure, to the F
plaintiff and defendant No. 6 on or before 12.3.1958 and further agreed
that if defendant Nos. 1 to 3 and 5 failed to deliver possession the plaintiff
and defendant No. 6 would be at liberty to take possession of the suit
properties in execution of the decree after 12.3.1958 and they shall be at
liberty to remove the superstructure and realise costs of such removal G
from defendants No. 1, 2, 3 and 5. After the passing of the decree,
defendant 3 transferred his 1/4th share in the leasehold rights and the
superstructure in favour of respondent No. 2. The defendants failed to
remove the superstructure and handover vacant possession as per the
terms of the compromise decree .. The appellant and defendant No. 6 filed
an Execution Petition. H
829
830 SUPREME COURT REPORTS [1995) SUPP. 1 S.C.R.

A The respondents Nos. 1 and 2 sought the ·benefit or the provisions or
the Madras City Tenant's Protections Act, 1921 and prayed that the
market value of the site might be fixed and the same might lie directed to
be com·eyed to them and that the decree holder was no longer entitled to
demolbh the building and he was bound to pay compensation for the
building put up by the applicants. ·The applications were dismissed as
B
barred by limitations as the defendants-tenants did not apply within one
month from the date the Act, as amended by Act XIX of 1955, was extended
to the city of Madurai but applied only in 1958 and therefore the said
applications could not be allowed in respect of the said property u/s 9 of
the Act. Tbe executing court, however held that the decree-holder must pay
c reasonable value for the costly superstructure and directed th~t a fresh
valuation to be.made by the Commissioner. A joint endorsement was made
by appellants and respundeni No. 1 accepting the valuation made by a
Commissioner and praying that six .;.onths time might be grJnted for the
payment of the ~mount to the decree holders. The Subordinate Judge
D granted six months time but application was submitted for further e~ten
sion of time for depositing the amount. Time for deposit was extended by
three months and the appellants deposited the amount. One respondent
No. 7 instituted a recovery suit against respondent no. 2 wherein an order
WdS passed for attachment of I/4th share of respondent No. 2 in the
superstructure.
E
The appellants filed a claim petition against the attachment on the
ground that they had become owners of the superstructure on the date of
attachment by reason of the deposit of R~. 88,940 made by them into the
court and that respondent No. 2 did not have any interest therein on the .
F date of attachment. The claim petition was allowed and the order of
attachment in respect of l/4th sbare in theatre was set aside. Respondent
No. 7 tiled a suit for setting aside the order. The suit was decreed on the
ground that iD' views of Section 4(11) of tbe Act only three months' time
could be granted for depositing the sum of Rs. 88,940 towards cost of
superstructure and tbe said amount had to be deposited on or before
G 29.12.1970 and since the appellants had failed to deposit the said amount
within that date, section 4(4) came into play immediately and suit No. 15/54
stood automatically dismissed and after 29.12.1970 there was no decree for
possession in favour of the appellantS' and that they continued to be the
owners of the vacant site alone and respondent No.Zand other continued
H to be owners of the superstructure. The appeal filed against this judgment
N.A. MUNAVAR L E.R. NARAYANAN 831
•
was dismissed. The appeHants filed Second Appeal A
The High Court dismissed the appeal while re,iecting the contentions
urged on behalf of the appellants that the provisions of the Act were not
applicable and the direction regarding deposit of Rs. 88.9411 was dehors
the provisions of the Act. Tite a1ipellants harl liled these appeal' against
the judgment of the High Court. B

The appellants urged that the order passed b~ the executing court
was not an order passed u/s 4(1) but was an order dehors the provisions
of the Act as the order was based on the earlier order. whereby the executing
court had dismissed all the three applications filed by Respondent' Nos. 1
<::
and 2 as being barred by limitation but having regard to the fact that the
tenants bad 11ut costly structure on the land the landlord decree- holders
. were directed to pay reasonable value for the superstructure, therefore,
this direction was not made under any of the provisions of the Act bnt on
equitable considerations and, therefore, the subsequent order of grant of
. six months time was an order passed dehors the provisions of the Act. ft D
was alleged that as the order was passed on the joiut endorsement by the
appellants and respondent No. 1, it was not open to the respondents to
assail the validity of the order on tlie basis of the provisions of Section 4
of the Act.
E
Respon.dent No. 1 submitted that the High Court was right in
holding that the appellants were required to deposit the amount within
three months; thafsince no period of limitation is prescribed for moving
. an application for determination of col"pensation u/s 10(2), the appllca·
lions Died by respondents. could ruit be dismissed as being .barred by
limitation and that the fact that the order. was passed on the basis or a F
joint endorsement could not preclude respondent No. 1 from assaHlng the
correctness of the orders.

The question raised for consideration wa5 whether the order passed ·
by the executing court whereby six·montlts time.was granted tu tlM deaee G
,, .
holders to deposit the sum or Rs. 88,940, was aa order passed u/s 4(1) of
the Act r/ws 10(2) or was an order passed dehors the provisions of die Ad.

Allowing these appeals, this Court

HELD : 1.1. An order under Section 4 of the Madras City Tea8Dts' H
832 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A Protection Act, 1921 could be passed only on an application under section
10(2) of the Act. The only applications that were submitted by respondent·
tenants were composite applications under sections 9 and 10(2) of the Act.
They were all dismissed as barred by limitation. ~o period of limitation
has been prescribed for an application under Section 10(2) of the Act, but
the executing court by order dated September 14, 1964 dismissed the
B
applications in toto as barred by limitation. The said order had become
linal. It was not open to the respondents to assail the correctness of the
said order in these proceedings. The order regarding payment of price of
the superstructure by the appellants to the respondents could not, there·
fore, be held to be orders passed under section 4(1) of the Act. The said
c orders could only be treated to be orders passed dehors the provisions of
the Act. [845-H, 846-A·B]

1.2. The procedure laid down under section 4 has to be followed only
when an application is filed by the tenant under Section 10(2) of the Act
and in the absence of such an application the provisions of section 4 do
D not come into play. Since the only application that was submitted by the
tenant· respondents was dismissed as barred by limitation no direction
regarding fixation of price could be made by the court under Section 4(1)
of the Act and the direction regarding payment of price by the decree·
holders and determination of the value could not be regarded as direction
E given under section 4(1) of the Act. Section 4(4) was, therefore, not
attracted and the suit could not be held to have been dismissed by virtue
of the provisions contained in Section 4(4) of the Act on account of
non-payment of the price of the superstructure by the appellants within a
period of three months from the date of the order. [846-E·G]

F CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 10618-19
of 1983.

From the .Judgment and Order dated 17.6.83 of the Madras High
Court in S.A.No. 987/82 & A.S.No. 529 of 1982.
G
A.T.M. Sampath, V. Balaji and G. Rajendran for the Appellants.

R. Sundravardan, Mrs. Asha Nair, C. Balasubramaniam and K. Ram
Kumar for the Respondents.

H P.N. Rainalingam for the Respondent No. 3.
N.AMUNAVARv. E.R. NARAYANAN [S.C.AGRAWAL,J.] 833

• The Judgment of the Court was delivered by A

S.C. AGRAWAL, J. These appeals from the Common Judgment of
the Madras High Court dated June 17, 1983 in AS. No. 529 of 1982 and
S.A. No. 987 of 1983, raise the question whether the decree passed in a
suit for ejectment filed by appellant No. 1 has become inexecutable and B
the said suit is liable to be dismissed by virtue of the provisions of section
4(4) of the Madras City Tenants' Protection Act, 1921 (hereinafter referred
to as the Act).

The appellants are the descendants of Abdul Kader Sahib. In 1917,
Abdul Kader Sahib gave a vacant plot of land on West Masi Street in c
Madurai Town on lease to Ramaswami Koner. The said lease permitted
construction to be raised on the plot. Ramaswami Kaner built a theatre on
the said plot. It was earlier known as 'Chandra Talkies' and was sub-
sequently named as 'Shanti Theatre'. On February 23, 1935 a fresh lease
was granted in favour of Ramaswami Kaner by Abdul Kader Sahib for a D
period of 11 years. After the death of Ramaswami Konar, there was
partition in the family and the leasehold rights over the vacant land and
the superstructure put up thereon came to the share of his son, Narayanan,
.respondent No. 1. On March 12, 1948, respondent No. 1 sold the leasehold
rights in the site as well as superstructure in favour of Bharatha Muthu
Thevar, who was the manager of the joint family consisting of himself and E
his brother Veerabhadra Thevar with an agreement to repurchase one half
of the leasehold rights in the site and the theatre. On November 28, 1953
Bharatha Muthu Thevar and his brother Veerabhadra Thevar reconveyed
half share in the theatre and in the leasehold rights over the land to
respondent No. I. In 1954 appellant No. 1 filed a suit (O.S.No. 15 of 1954) F
in the Court of the Subordinate Judge of Madurai, against respondent No.
1 (who was implcaded as Defendant No. 1), and Bharatha Muthu Thevar,
Veerabhadra Thevar, impleaded as Defendants Nos. 2 and 3, and others
including N.A. Ghulam Khalilluah Sahib, Defendant No. 6, for recovery of
possession of the vacant site after removal of superstruciure and for a G
mandatory injunction for removal of structure as well as for damages for
use and occupation and for other reliefs. The said suit proceeded ex parte
against Defendants Nos. 4 and 5. In the .said suit a compromise was arrived
at between appellant No. 1 and defendants Nos. 1, 2, 3 and 6 and in terms
of the said compromise a decree was passed on January 10, 1955
whereunder defendants Nos. 1, 2, 3 and 5 agreed to deliver the possession H
834 SUPREME COURT REPORTS [1995] SUPP. l S.C.R.

A of the suit properties after removing the superstructure on item No. l, to
the plaintiff and defendant No. 6 on or before March 12, 1958 and further
agreed that if defendant Nos. 1 to 3 and 5 fail to deliver possession as
aforesaid the plaintiff and defendant No. 6 would be at liberty to take
possession of the suit properties in execution of the decree. after March 12,
1958 and in case the plaintiff or defendant No. 6 has to remove the
B superstructure, they shall be at liberty to remove them and realise costs of
such removal from defendants nos. 1, 2, 3 and 5.

The Act was enacted in i922 with a view to give protection to certain
classes of tenants. Originally it was confined in its application to the city
C of Madras, but by Tamil Nadu Act XIX of 1955, the Act was amended and
its protection was extended to tenants in municipal towns to which the
provisions were made applicable by the State Government by notification
under sub- section (2) of section 1. In exercise of the said powers, the Act
was extended to Madurai on September 12, 1955.

D After the passing of the compromise decree dated January 10, 1955
Veerabhadra Thevar, on December 19, 1956, transferred his 1/4th share in
the leasehold rights and the superstructure in favour of S.S.Sundaram
Chettiar, respondent No. 2 herein.

E Since the defendants failed to remove the superstructure and hand-
over vacant possession as per the terms of the compromise decree, the
appellant and N.A. Ghulam Khalilulla Sahib defendant No. 6 in the suit
filed E.P.No. 90 of 1958 in the court of the Subordinate Judge, Madurai
for execution of the said decree dated January 10, 1955 passed in O.S.No.
F 15 of 1954. In the said execution petition respondent No. 1 filed application
E.A. No. 467/58, Bharatnamuthu Thevar filed E.A.No. 486/58 and respon-
dent No. 2 filed E.A.No. 713/58 whereby the said applicants sought the
benefit of the provisions of the Act and prayed that the market value of
the site may be fixed and the same may be directed to be conveyed to them.
It was also prayed that in any case the decree-holder was no longer entitled
G to demomish the building at his cost or of the applicants in spite of the
decree and that the decree holder was bound to pay compensation for the
building put up by the applicants. During the pendency of the said applica-
tions N.A. petitions Ghulam Khalilulla Sahib died and appellant No. 2 was
brought on record as his legal representative and Bharatha Muthu Thevar
H also died during the pendency of the said applications and respondent Nos.
' N.A MUNAVAR v. E.R.NARAYANAN [S.C.AGRAWAL,J.] 835

4 to 6 were brought on record as his legal representatives. E.A.Nos. 467, A
486 and 713 of 1958 referred to above were disposed of by the executing
court by a common order dated September 14, 1964. It was held that the
applications were barred by limitation as the defendants-tenants did not
apply within one month from the date the Act, as amended by Act XIX of
1955, was extended to the city of Madurai, but applied only in 1958 after B
the expiry of three years' time and therefore the said applications could
not be allowed in respect of the said property under section 9 of the Act.
The executing court, however, held that it is admitted that tenant had put
costly structure on the property and that the decree-holder must pay
reasonable value for the ~aid superstructure. The executing court, there-
fore, directed that a fresh valuation may be made by the Commissioner to
c
be appointed by the court. With these directions EA.Nos. 467, 486, and
713 of 1958 were dismissed as barred by limitation. In accordance with the
said direction contained in the order dated September 14, 1964 a Commis-
sioner was appointed who assessed the value of the superstructure at Rs.
88,940. On September 29, 1970 a joint memo was submitted by the appel- D
!ants and respondent No. 1, whereby a joint endorsement was made by
appellants and respondent No. 1 that the value of Rs. 88,940 may be
adopted and that six months' time may be granted for the payment of the
amount to the decree-holders. On the strength of the said joint endorse-
ment the Subordinate Judge granted six months time for depositing the E
sum of Rs. 88,940. The execution petition proceeded ex-parte against the
other judgment- debtors. The said amount of Rs. 88,940 was not deposited
by the appellants within the period of six months and an application
(EA.No. 201171) was submitted on behalf of the appellants for further
extension of time for depositing the said amount. Respondent No. 1 filed F
a counter opposing the grant of time. Subsequently on July 31, 1972 a
joint endorsement was submitted by parties and time for deposit was
extended by three months from July 31, 1972. The appellants deposited
the amount of Rs. 88,940 on September 29, 1972 within the period of three
months prescribed by order dated July 31, 1972. G
'\
One Mangyakarsi Achi, respondent No. 7 herein, had instituted a suit
(O.S. No. 72/61) in the Sub-Judge court Madurai against respondent No.
2 for recovery of certain amount due to her from respondent No. 2 on the
basis of mortgage wherein final decree had been passed and even after the,
sale of the mortgaged property the decree was not fully satisfied. In the H
836 SUPREME COURT REPORTS (1995) SUPP. 1 S.C.R.

A said suit respondent .:..o. 2 had been appointed as Receiver of the Ashok
Thea!Te the mortgaged property, and Respondent No. 2 failed to deposit
in court the amounts collected by him as receiver. Respondent No. 7 filed
an application (IA. 171/72) under Order 40 Rule 4 CPC in the said suit
(O.S. 72161) in the court of Subordinate Judge, Ramanathapuram, for
. B attachment .of 1/4th share and the rights of respondent No. 2 in Shanthi
Theatre. On the said application an order was passed for attachment of
1/4th share of respondent No. 2 in Shanthi theatre on August 21, 1972 and
in pursuince--of the said order attachment. was effected on September 17,
1972. Since the said attachment order was passed ex-parte it was set aside
on the application submitted by respondent No. 2. On February 27, 1973
C a fresh order was passed for attachment of 1/4th share of respondent No.
2 in Shanthi Theatre and in pursuance of the said order the attachment
was effected on March 25, 1973. The appellants fded a claim petition (IA.
No. 527 of 1973) against the said attachment on the ground that they had
become owner of the superstructure in Shanthi Theatre on the date of
D attachment by reason of the deposit of Rs. 88,940 made by them into the
court pursuant to the order dated July 1, 1972 in E.P.No. 90 of 1958, in.
O.S.No. 15 of 1954 and that respondent No. 2 did not have any interest
therein on the date of attachment. The said claim petition filed by the
appellants was allowed and the order of attachment in respect of 1/4th
E share of respondent No. 2 in Shanthi Theatre was set aside by order dated
May 2, 1975. Thereupon respondent No. 7 filed a suit (0.S.No. 92of1976)
against appellants and respondent No. 3 for setting aside he said order
dated May 2, 1975. The said suit of respondent No. 7 was decreed by the
1st Additional Subordinate Judge, Madurai by judgment dated September
7, 1976 on the ground that in view of section 4(4) of the Act only three
F 'months' time could be granted for depositing the sum of Rs. 88,940 towards
cost of superstructure and the said amount had to be 'deposited on or
· before December 29, 1970 and since the appellants had a filed to deposit
the said amount within that date, section 4(4) of the Act came into play
immediately and suit O.S.No. 15/54 stood autorllab'cally dismissed and after
G December 29, 1970 there was no decree for possession in favour of the
appellants and that they continue to be the owners of the vacant site alone
and respondents No. 2 and other continue to be owners of the superstruc-
ture and that respondent No. 2 had undivided 1/4th share in the super-; •
structure. The appeal (A.S.No. 292 of 1978) filed by the appellants against
H the said judgment and decree in O.S.No. 92 of 76 was dismissed by the
-, N.AMUNAVAR v. E.RNARAYANAN [S.C.AGRAWAL,J.] 837

District Judge Madurai by judgment and decree dated May 9, 1979. Second A
appeal No. 987 of 82 was filed by the appellants in the High Court against
the said decree of the District Judge.

After O.S. No. 92 of 1976 filed by respondent No. 7 was decreed by
the trial court, respondent No. 1 filed a suit (O.S. No. 671 of 1978) in the
B
Court of Subordinate Judge of Madurai against the appellants as well as
respondent nos. 2 to 8 wherein Respondent No. 1 sought a declaration that
he is entitled to half share in the superstructure including the leasehold
rights over the site and also sought a permanent injunction restraining the
appellants from interfering with the common possession and enjoyment of
the superstructure by Respondents Nos. 1, 2 and 4 to 6. Respondents also c
sought other reliefs against the other defendants in the said suit. In the said
suit it was submitted that the_ decree in 0.S. No. 15/54 was an invalid decree
and payment of Rs. 88,940 beyond the statutory time fixed under the Act
was_illegal and could not therefore confer any right on the appellants and
that the respondent No. 1 was still entitled to half share in the superstruc- D
ture, machinery etc. as also in the leasehold right of the site. The said suit
was decreed in favour of respondent No. 1 by the III Additional Sub-Judge,
Madurai by Judgment dated November 16, 1981 and respondent No. 1 was
held entitled to half share in the leasehold right as well as the superstruc-
ture. The said judgment was based on the judgment of the trial court in
O.S.No. 92 of 1976 filed by Respondent No. 7 which had been affirmed in E
A.S. 292 of 1978 and the said judgment was held to operate as res judicata.
A.S. No. 529 of 82 was filed by the appellants in the High Court against
the said judgment and decree of the Ill Additional Sub-Judge.

A.S. No. 529 of 1982 and S.A.No. 987 of 1983 were both disposed 'of F
by the High Court by the judgment under appeal. The High Court was of
the view that the order dated September 29, 1970 passed by the executing
court in E.P.No. 90 of 1958 was really an order passed by the executing
court under Section 4(1) of the Act read with Section 10(2) and must
strictly conform to the requirements of Section 4(1) and, therefore, the
·, amount of Rs. 88,940 should have been deposited within three months from G
the date of passing of the order dated September 29, 1970 and since it was
· not deposited within the said period of three months, the suit (O.S.No.
15/54) stood dismissed by virtue of section 4(4) of the act. The High Court
has rejected the contentions urged on behalf of the appellants that the
provisions of the Act were not applicable and the direction regarding H
838 SUPREME COURT REPORTS [1995] SUPP. I S.C.R.

A deposit of Rs. 88,940 was dehors the provisions of the Act. Feeling ag-
grieved by the said Judgment of the High Court the appellants have filed
these appeals.

Thus the question that falls for consideration in these appeals is
whether the order dated September 29, 1970 passed by the executing court
B in E.P.No. 90 of 1958, whereby six months time was given to the decree-
holders to deposit the sum of Rs. 88,940, was an order passed under section
4(1) of the Act read with Section 10(2) or was an order passed dehors the
provisions of the Act. It would be convenient at this stage to sel out the
relevant provisions of the Act as they stood on September 29, 1970:
c "Section 3. Payment of Compensation an ejectment. Every tenant
shall on ejectment be entitled to be paid as compensation the value
of any building, which may have been erected by him, by any of
his predecessors in interest, or by any person not in occupation at
the time of the ejectment who derived title from either of them,
D and for which compensation has not already been paid. A tenant
who is entitled to compensation for the value of any building shall
also be paid the value of trees which may have been planted by
him on the land and of any improvements which may have been
made by him."
E
"Section 4(1). Disposal of suits far ejectment. In a suit for ejectment
against a tenant in which the landlord succeeds, the court shall
ascertain the amount of compensation, if any, payable under sec-
tion 3 and the decree in the suit shall declare the amount so found
due and direct that, on payment by the landlord into court, within
F three months from the date of the decree, of the amount so found
due, the tenant shall put the landlord into possession of the land
with the building and trees thereon.

(2) Omitted.
G (3) Omitted.

(4) If the amount found due is not paid into court within three
months from the date of the decree under sub-section (1) or of
the interim order under sub-section (2), or if no application is
H made under section 6, the suit or application, as the case may be,
•• NA MUNAVAR v. ER.NARAYANAN(S.C.AGRAWAL,J.] 839

shall stand dismissed, and the landlord shall not be entitled to A
institute a fresh suit for ejectment, or present a fresh application
for recovery of possession for a period of five years from the date
of such dismissal."

"Section 9(1)(a). Applicatio11 to Cowt for directing the landlord to
sell la11d. Any tenant who is entitled to compensation under section B
3 and against whom a suit in ejectment has been instituted or
proceeding under section 41 of the Presidency Small Cause Court
Act 1882, taken by the landlord, may, within one month of the date
of the Madras City Tenants' Protection (Amendment) Act, 1955,
coming into force or of the date with effect from which this Act c
is extended to the municipal town or village in which the land is
situate, or within one month after the service on him of summons,
apply to the court for an order that the landlord shall be directed
to sell for a price to be fixed by the court, the whole or part of the
extent of land specified in the application.
D
xx xx xx xx xx

(b). On such application, the court shall first decide the minimum
extent of the land which may be necessary for the convenient
enjoyment by the tenant. The court shall then fix the price of the E
minimum extent of the land decided as aforesaid, or of the extent
of the land specified in the application under clause (a); whichever
is less. The price aforesaid shall be the average market value of
the three years immediately preceding the date of the order. The
court shall order that within a period to be determined by the
court, nor being less than three months and not more than three F
years from the date of the order, the tenant shall pay into court
or otherwise as directed the price so fixed in one or more instal-
ments with or without interest.

(2) (Omitted)
G
(3) (Omitted)

"Section 10{1). Sections 4, 5, 6, 8, 9 and 9-A shall apply to suits in
ejectment and applications under section 41 of the Presidency
Small Cause Courts Act 1882, which are pending or in which H
840 SUPREME COURT REPORTS (1995) SUPP. 1 S.C.R.

A decrees for ejectment or order sunder section 43 of the Presidency
Small Cause Courts Act, 1882, have been passed, but have not been
executed in the City of Madras, before the commencement of the
Madras City Tenants' Protection (Amendment) Act, 1955, and in
any municipal town or village, before the date with effect from
which this Act is extended to such town or village. ·
B
(2). In suits in which decrees for ejectment have been passed, the
amount of compensation due shall on the application of the tenant
be ascertained in execution and a fresh decree passed in accord-
ance with section 4.
c (3). (Omitted)."

From the aforesaid provisions it would appear that under Section 3,
on ejectment, a tenant is entitled to be paid as compensation the value of
any building which may have been erected by him or by his predecessor in
D interest or by any person not in occupation al the time of ejectment who f
derived title from either of them and for which compensation has not
already been paid. Section 4 makes provision for giving effect to the said
right while passing the decree in the suit for ejectment. Section 9 enables
a tenant against whom a suit for ejectment has been instituted to buy the
whole or a parl of the land on payment of the price determined by the
E court Section 10 deals with a situation where the suit for ejectment was
pending or where the decree for ejectment has already been passed, liut
has not been executed on the date when the provisions of the Act became
applicable. By sub-section (1) of Section 10 the provisions of sections 4, 5,
7, 8, 9 and 9-A have been made applicable to such suits. Sub-section (2)
F of Section 10 enables the tenant to move an application for ascertainment
of the amount of compensation and passing of a fresh decree in accordance
with Section 4 in suits in which decrees for ejt:ctment have been passed.

In the instance case we are concerned with the provisions of section
10 because on September 12, 1955 when the Act was extended to Madurai
G town the decree for ejectment had already been passed in Suit O.S.No. 15
of 1954 and the said decree had not been executed. By virtue of sub-section
(1) of section IO, sections 4, 5, 6, 8, 9 and 9-A became applicable to such
proceedings. Section 3 was, however, not made applicable. As a result the
tenants, could file an application under Section 9(1)(a) within one month
H from September 12, 1955, the date with effect from which the Act was
.., N.A. MUNAVAR v. E.R. NARAYANAN [S.C.AGRAWAL,J.] 841

extended to Madurai town, for an order directing the landlord to sell the A
whole or part of the extent of land specified in the application at the price
to be fixed by the court. Under sub-section (2) of section 10 the tenants
could submit an application for ascertainment of the amount of compen-
sation due and in the event of such an application being filed the procedure
laid down under section 4 was required to be followed and a fresh decree
B
· had to be passed under section 4 of the Act.

In V.KA. Ranganatha Konar v. T7ie Timc/Jirappalli Municipal Cowi-
cit, by its Commissioner, & Anr., [1965] 2 SCR 645, during the pendency of
the suit for eviction filed by the landlord, the Act was extended to the
Municipal Town of Tiruchirappalli. The trial court valued the improve- c
ments made by the tenant and made a declaration under section 4(1) of
the Act. On the basis of the said valuation the decree for ejectment was
.. passed directing the defendants to put the plaintiff in posses.ion of the suit
properties on payment of the amount determined as compensation for the
superstructure belonging to the first defendant. The decree did not in
D
. terms direct the landlord to pay the said amount \vithin three months of
its date. The said payment was not made by the landlord within three
. months from the date of the decree. After the expiry of period of three
months from the date of decree, the tenant filed an application before the
trial court submitting that since the landlord had failed to deposit the
amo.unt of compensation within the period of three months from the date E
of the decree, the suit was liable to be dismissed under section 4(4) of the
Act. On the said application the trial court passed an order dismissing the
suit under section 4(4). The High Court reversed the said order on the
view that since the original decree did not give a specific direction that the
amount of compensation should be paid within three months, the F
provisions of section 4(4) could not be invoked until the decree was suitably

- amended. Reversing the said view of the High Court and restoring the
order of the trial court, this Court has held:
•

"We are inclined to think that having regard to the mandatory
., terms used in s.4(4), it would be illogical and unreasonable to G
suggest that a defective decree like the present enables the
landlord to circumvent the provisions of s.4(4). The applicability
of s.4( 4) cannot be repelled merely on the ground that the decree '
passed under s.4(1) does not specify the period of three months
within which the amount found due has to be paid. In our opinion, H
842 SUPREME COURT REPORTS [1995J SUPP. 1 S.C.R. ........
A the logical way to reconcile s.4(1) and s.4(4) would be to treat the
provision prescribed by s.4(4) as mandatory and paramount and
read the relevant portion of s.4(1) accordingly. That is why even
if the decree does not mention that the amount. has to be paid
within three months, the landlord's obligation to make the payment
within three months is still enforceable under s.4(4), otherwise
B defective decrees would deprive the tenants of the benefit intended
to be conferred on them by s.4(4). "(p.652)

The High Court has relied upon the said decision to hold that since
the order dated September 29, 1970 was passed under section 4(1) of the
c Act, the court could only prescribe three months' time for depositing the
amount of compensation in view of section 4( 4) of the Act and fixing of six
months time for such deposit in the said order was, therefore, not in
consonance with the statutory requirements of section 4 of the Act and the .
said order should be construed as having fixed three months' time for the
said deposit and since the deposit was not made within three months, the
D
said suit stood dismissed under section 4(4) of the Act on the date of expiry
of the period of three months' from the date of passing of the order dated
September 29, 1970.

Shri A.T.M. Sampath, the learned counsel for the appellants, has
E urged that the order dated September 29, 1970 was not an order passed
under section 4(1) of the Act but was an order passed debars the
provisions of the Act. Shri Sampath has pointed out that the said order
dated September 29, 1970 is based on the earlier order dated September
14, 1964 whereby the executing court had dismissed all the three applica-
F tions (E.A.Nos. 467, 486, and 713 of 1958) filed by Respondent No. 1 and
Bharathamuthu Thevar and Respondent No. 2 as being barred by limita-
tion but having regard to the fact that the tenants had put costly structures
on the land the landlord decree-holders were directed to pay reasonable
value for the said superstructure. According to Shri Sampath this direction
in the order dated September 12, 1964 was not given by the court under
-
G any of the provisions of the Act but on equitable considerations and, ,.
therefore, the subsequent order dated September 29, 1970 was an order
passed dehors the provisions of the Act. In support of the said submissions
Shri Sampath has placed reliance on the decision of a learned judge of the
Madras High Court in G. Muthuve/ Pillai v. Hazarath Syed Sha Mian
H Sakkab Kadhili Tlzakal, Thanjavur by its Tntstee and Ors., (1976) MLJ 332,
NA MUNAVAR v. E.R. NARAYANAN [S.C.AGRAWAL,J.] 843

which has_ been affirmed by this Court in G. Muthuvel Pillai (dead) by Lrs. A
v. Hazarath Syed Shah Mian Sakkab Sahib Khadili Thaikal (dead) "by LI,.
and 01:<., [1993] Supp. 1 SCC 413. Shri Sampath has also urged that the
order dated September 29, 1970 was passed on the. basis of the joint
endorsement by the appellants and respondent No. 1 and in view of the
fact that on the basis of subsequent joint endorsement dated July 31, 1972
B
which was signed by appellants as well as respondent Nos. 1 and 2 the time
for payment was extended by three months by order dated July 31, 1972,
it is not open to the respondents to assail the validity of the said order on
the basis of the provisions of sections 4 of the Act.

Shri R. Sundravardan, the learned Senior counsel appearing for C
respondent No. 1, has, on the other hand, submitted that the High Court
was right in holding that the order dated September 29, 1970 was passed
under section 4(1) of the Act and in view of section 4(4) of the Act, the
appellants were required to deposit the amount of Rs. 88,940 compensation
within three months from the date of the said order and since they failed
to do so, the suit (O.S.No. 15 of 1954) filed by the appellants ·stood D
. dismissed on the expiry of the period of three months on December 29,
1970 by virtue of Section 4(4) of the Act. The learned counsel has con-
tended that while an application under section 9 is required to be sub-
mitted within one month from the date of application of the Act, no period
of limitation is prescribed for moving an application for determination of E
compensation under section 10(2) of the Act and that the applications
(E.A.Nos. 467, 486 and 713 of 1958) filed by Respondent No. 1 and
Bharathamuthu Thevar and Respondent No. 2, insofar as they sought a
direction regarding payment of compensation for the superstructure, could
not be dismissed as being barred by limitation. The .learned counsel has
also urged that the fact that the order dated September 29, 1970 was passed F
on the basis of a joint endorsement submitted by the appellants and
respondent No. 1 cannot preclude respondent No. 1 from assailing the
correctness of said order on the ground that it was passed in contravention
of the provisions of section 4 of the Act. The learned counsel has placed
reliance on the provisions of Section 12 of the Act which provides that G
.'\ nothing in any contract made by a tenant shall take aw_ay or limit his rights
under the Act.

In the order dated September 14, 1964 whereby EA.Nos. 467, 486
and 713 of 1958 were dismissed, the Subordinate Judge, after referring to
the decisions of the Madras High Court, has observed : ,' H
844 SUPREME COURT REPORTS (1995J SUPP. 1 S.C.R.

A "Bearing these principles in mind, I have to hold that in as much
as the tenants did not apply within one month from the date of
Madras City Tenants Protection Amended Act XIX of 1955 ex-
tended to the City of Madurai, but only applied in 1958 after the
expiry of 3 years time. The applications E.A.Nos. 467, 486 and 713
of 1958 are out of time."
B
The Subordinate Judge rejected the contention urged on behalf of
the tenants and the other respondents that the period of one month should
be counted from the date of service of the notice in the execution petition
and has held :
c "I hold all E.As. are clearly out of time and no E.A. has been filed
within 30 days of the extension of MCTP Act. Therefore I hold
that E.A. Nos. 467, 486 and 713 of 1958 cannot be allowed in
respect of the claim to sell the property under section 9 of the
Madras City Tenants Protection Act, and these applications have
D to be dismissed in toto as regards the prayer, in them, to fix their
market value.

E.A.Nos. 467, 486 and 713 of 1958 are hereby dismissed as barred
by limitation."
E
Even though the applications were dismissed as barred by limitation
the Subordinate Judge has held that "the decree holder must pay
reasonable value of the superstructure" after observing:

"Further it is admitted that possession had passed to the tenant
F and that the tenant has put up costly structures on the property.
Therefore, I do not see any ground to refuse the value of improve-
ments.11

The Subordinate Judge permitted the applicants (Defendants Nos.
1, 2 and 7) to take out a fresh commission for assessing the value of the
G buildings through a competent Commissioner. In pursuance of the said
direction the Commissioner was appointed who submitted a report assess-
ing the value of the superstructure at Rs. 88,940. The said report was
accepted by the Subordinate Judge on the basis of a joint endorsement
made by the appellants and respondent no. 1 and by order dated Septem-
H ber 29, 1990 six months time was given to the appellants to deposit the said
N.A MUNAVAR I'. E.R. NARAYANAN (S.C.AGRAWAL.J.] 845

amount of Rs. 88,940. A

These directions regarding payment of reasonable value of the su·
perstructure and the assessment of the value through a Commissioner
cannot be regarded as having been given under the provisions of the Act
since the applications submitted by the defendants were dismissed as
barred by limitation. These directions here to be regarded as having been
B
given on equitable considerations.

In G.Mutlmve/u Pillai (supra) a compromise decree had been passed
in a suit for vacant possession of leasehold property on June 28, 1963
whereunder the superstructure put up on the land was to be purchased by C
the plaintiff for Rs. 6,000. The provisions of the Act were not applicable
on the date of the passing of the decree and were extended to Thanjavur
by notification dated November 7, 1964. The application submitted by the
defendant under Section 9 of the Act was dismissed as it was filed beyond

. the period of limitation of one month. The High Court, in second appeal, D ·
increased the sale consideration fixed by the trial court for the superstruc·
ture from Rs. 6000 to Rs. 8000. The plaintiff sought delivery of. possession
in proceedings for execution of the decree. Relying upon the provisions of
section 3 of the Amending Act 16, 1964, which was made applicable to
Thanjavur on November 7, 1964 and which provided for abatement of
certain pending proceedings it was urged on behalf of the defendant that E
the proceedings had abated. Rejecting the said contention it was held by
the High Court (S. Mohan J., a' the learned Judge then was) that it wa' a
case of simple purchase of superstructure dehors the Act and it could not
be contended that any rights still remained surviving which abated under
section 3 of the Amending Act 16 of 1964. The said judgment of the High F
Court has been affirmed in appeal by this Court. [See : G.Mutlmvelu Pillai
(supra)). This case indicates that an order regarding payment of price for
the superstructure collld be passed dehors the Act.

We are unable to construe the order dated September 14, 1964 and
the subsequent order dated September 29, 1970 as. orders passed under G
Section 4(1) of the Act. An order under Section 4 could be passed only on
an application under section 10(2) of the Act. The only applications that
were submitted by the respondent-tenants were E.A.Nos. 467, 486 and 713 ·
of 1958. The said applications were composite applications under section
9 and 10(2) of the Act. They were all dismissed as barred by limitation. It H
846 SUPREME COURT REPORTS (1995) SUPP.1 S.C.R.

A is true that no period of limitation has been prescribed for an application
under Section 10(2) of the Act, but the executing court by order dated
September 14, 1964 dismissed the applications in toto as barred by limita-
tion. The said order has become final. It is not upen to the respondents to
assail the correctness of the said order dated September 14, 1970 in these
proceedings. The orders dated September 14, 1964 and September 29, 1970
B
regarding payment of price of the superstructure by the appdlants .to the
respondents cannot, therefore, be held to be orders passed under section
4(1) of the Act. The said orders can only be treated to be orders passed
dehors the provisions of the Act.

C The High Court has laid emphasis on the provisions contained in
section 3 of the Act and has observed that the said provisions cast an
obligation on the court to determine the amount of compensation under
section 4 in respect of superstructure. The High Court has, however, failed
to note that under section 10(1) the provisions of Section 3 have not been
D made applicable to a suit that was pending or in which decree for ejectment
had been passed, but had not been executed. In respect of suits in which
decrees for ejectment have been passed provision is made in Section 10(2)
for ascertainment in execution of the amount of compensation due on the
application of the tenant and for passing a fresh decree in accordance with
section 4. This means that the procedure laid down under section 4 has to
E be followed only when an application is filed by the tenani under Section
10(2) of the Act and in the absence of such an application the provisions
of section 4 do not come into play. Since the only application that was · i
submitted by the tenant-respondents was dismissed as barred by limitation
no direction regarding fixation of price could be made by the court under
F Section 4(1) of the Act and the direction regarding payment of price by
the decree-holders and determination of the value cannot be reg~rded as
a direction given under section 4(1) of the Act. Section 4(4) is, therefore,
not attracted and the suit (O.S.No. 15 of 1954) could not be held to have
been dismissed by virtue of the provisions contained in Section 4(4) of the
Act on account of non-payment of the price of the superstructure by the
G appellants within a period of three months from the date of the order dated
September 29, 1970.

In that view of the matter we do not consider it necessary to go into
the other contention urged by Shri Sampath that Lhe deposit of the sum of
H Rs. 88,940 by the appellants as per the directions given in the order dated
N.AMUNAVARv. E.R.NARAYANAN [S.C.AGRAWAL,J.] 847

September 29, 1970, was validly made and that the respondents were A
stopped from assailing the validity of the said deposit.

In the result the appeals are allowed, the judgment dated June 17,
1983 passed by the High Court of Madras in S.A.No. 987 of 1983 and AS.
No. 529 of 1982, the judgment dated September 7, 1977 passed by 1st Addi.
Subordinate Judge in O.S. No. 92/78, judgment dated May 9, 1979 passed B
by the District Judge, Madurai in AS.No. 292n8 as well as judgment dated
November 16, 1981 passed by the Subordinate Judge, Madurai in O.S.No.
671n8 are set aside and O.S. No. 92/76 and O.S. No. 671n8 filed by
respondent No. 1 are dismissed. The appellants will be entitled to their
costs. c
R.A. Appeals allowed.

I,

.. "