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Cheriyan Vs. Kristhu Raja Janasahayam Sangham and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberC.M.A. Nos. 171 and 173 of 1975
Judge
Reported inAIR1977Ker82
ActsKerala Debtors (Temporary Relief) Act, 1975 - Sections 3
AppellantCheriyan
RespondentKristhu Raja Janasahayam Sangham and ors.
Appellant Advocate M.K. Narayana Menon,; K.P. Sreekumar and; P. Parameswara
Respondent Advocate K. Velayudhan Nair,; V.S. Moothathu and; V. Jayakumar
Cases ReferredSenajt v. Pannaji
Excerpt:
- - and the other for appointment of a receiver for managing the properties described in the schedule to the plaint as well as the properties sought to be attached before judgment......of the kerala stay of eviction proceedings ordinance 1957, shall lie in any court and all suits, proceedings in execution of decrees or orders and other proceedings pending in the courts at such commencement for such eviction or recovery ofarrears of such rent or damages shall be stayed: provided that nothing in this section shall preclude the court from granting any relief to which the lessor is entitled other than eviction from the holding.' it is quite clear that the stay was only with respect to the eviction of a person from his holding and with respect to the recovery of arrears of rent which accrued due before the commencement of the kerala stay of eviction proceedings ordinance 1957, the proviso further made it clear that the court was not debarred from granting any other.....
Judgment:

Bhaskaran, J.

1. C. M. A. No. 171 of 1975 arises out of LA. No. 875 of 1974 in O. S. No. 147 of 1974 on the file of the Sub-Court of Parur and C. M. A. No. 173 of 1975 arises out of I. A. No. 1148 of 1975 in O. S. No. 148 of 1974 on the file of the Sub-Court. Parur, both suits between the same parties. The appellant is the 1st defendant in the suit and 1st counter-petitioner in the petitions. The suits were for recovery of amounts secured by hypothecation bonds. In each of these suits two petitions were filed; one for attachment, before judgment, of five items of properties not included in the hypothecation bonds, and therefore not included in the schedule of properties to the plaint, they being not subject-matter of the suit; and the other for appointment of a receiver for managing the properties described in the schedule to the plaint as well as the properties sought to be attached before judgment.

2. After the coming into force of Act XXX of 1975, the appellant seems tohave filed a petition in each of the suits for staying the proceedings. The court below while staying the suits, passed also the impugned orders appointing a receiver for the management of the properties attached before judgment, and also for the said properties. Shri M. K. Narayana Menon, counsel for the appellant, submits that the court below has fallen in error in making a distinction between suit proper on the one hand, and proceedings therein on the other for the purpose of stay. Section 3 of Act XXX of 1975 provides inter alia:

''...... and all such suits, applications,appeals and petitions instituted, made or presented before such commencement and pending at such commencement shall stand stayed for the said period.' and therefore the statutory stay brought into effect does not contemplate a distinction between the suit proper on the one hand and petitions or other proceedings therein on the other so as to conclude that the stay is confined to suits alone without taking within its ambit proceedings therein.

3. Shri Kalathil Velayudhan Nair, counsel for the respondents submitted that even if the suits are stayed that does not mean that the power of the court to make appropriate directions in regard to the management of the properties is thereby taken away. In support of his argument, he cited the decisions in Eapen v. Abraham, 1957 Ker LT 1244 = (AIR 1958 Ker 250) and Senaji v. Pannaji (AIR 1922 Bom 276). We are afraid, these two decisions cannot support the respondents. In the first case i.e. Eapen v. Abraham 1957 Ker LT 1244 - (AIR 1958 Ker 250) what came up for consideration was the provisions of the Stay of Eviction Proceedings Act, 1957. S. 4 therein provided as follows:

'Notwithstanding anything to the contrary contained in any other law for the time being in force or in any contract, with effect on and from the commencement of this Act, no suit or other proceedings for eviction of a person from his holding or for the recovery of arrears of rent in respect of, or for damages for use and occupation of, the holding accrued due before the commencement of the Kerala Stay of Eviction Proceedings Ordinance 1957, shall lie in any Court and all suits, proceedings in execution of decrees or orders and other proceedings pending in the Courts at such commencement for such eviction or recovery ofarrears of such rent or damages shall be stayed:

Provided that nothing in this section shall preclude the Court from granting any relief to which the lessor is entitled other than eviction from the holding.' It is quite clear that the stay was only with respect to the eviction of a person from his holding and with respect to the recovery of arrears of rent which accrued due before the commencement of the Kerala Stay of Eviction Proceedings Ordinance 1957, The proviso further made it clear that the court was not debarred from granting any other relief which did not involve the eviction of the tenant. The position is not identical here. As far as the second case, i.e. Senajt v. Pannaji (AIR 1922 Bom 276) is concerned, it was a matter arising out of Section 10 of the Code of Civil Procedure. The distinction between the stay under Act XXX of 1975, and a stay under the Civil Procedure Code is that while in the former there is a statutory stay, in the latter the court seized of the matter passes a stay of the proceedings pending disposal of the previously instituted suit in which substantially the same issues come up for trial. Therefore, we are of the opinion that the reasoning with respect to the stay under Section 10 of the Code of Civil Procedure cannot be applied to the provisions contained in Section 3 of Act XXX of 1975.

4. Shri Velayudhan. Nair then contended that on facts it could be seen that the suits are not liable to be stayed in view of the fact that an element of breach of trust is involved in both the matters. He further contended that at any rate one of the suits even on the admitted facts could not have been stayed under the provisions of the Act. As it is, we find the court below has proceeded as though the Act is applicable to both the suits, and they 'have been treated as statutorily stayed; that in substance is the effect of the court passing an order staying the two suits.

5. We are in agreement with the argument of Shri Narayana Menon that the impugned orders have been passed without considering the applicability of Section 3 of the Act. We find that as a matter of fact there is no discussion at all as to whether the provision of the Act is applicable or not to the applications sought to be stayed by the appellant. The court below seems to have proceeded on the assumption that though suits would stand stayed by the operation of the provisionsof Section 3 of Act XXX of 1976, those provisions would not apply to the application in the suits. We have no doubt in our minds that the provisions of Section 3 are applicable to the pending applications in the suits, as much as to the suits them-selves (if the provisions are applicable to the suits).

6. We, therefore, allow these appeals and set aside the impugned orders and direct the court below to pass appropriate orders after hearing the parties and considering all aspects of the matter, No costs.

Send down the records to the trial court forthwith.


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