1. This is a revision by the petitioners in O. P. 20/55, District Munsiffs Court, Kokhikode against the order of that Court rejecting their said application under Section 34 of the Malabar Tenancy Act.
2. There is no dispute about the facts in so far as they are relevant to the present proceedings. The petitioners were occupying a Kudiyiruppu and there was a decree for eviction against them in a suit instituted by the landlord namely, O. S. 706/45 District Munsiffs Court, Kozhikode. The decree was on 28-1-1946 and the same became final. Decree-holders claimed to have obtained delivery of possession on 4-10-1946, The delivery is also stated to have been recorded on 11-11-1046.
3. The applicants appear to have taken the said delivery proceedings in appeal A. S. 57/47, and in the said appeal there was an order remanding the said proceedings to the trial Court for an enquiry as to whether in fact, there was a delivery or not. No material has been placed before this Court as to what happened subsequent to the said remand order passed in A. S. 57/47. But that may not have much of a bearing for deciding the points in controversy in these proceedings.
4. The present petitioners filed an application under Section 34 of the Malabar Tenancy Act 1930 as amended up to date by the Act, of 1954. Their prayer was to direct the decree-holders-respondents 1 and 2 to assign the suit property at the current market price and also with liberty to pay the said price in 12 annual instalments.
5. This application was opposed by the decree-holders on the ground that the application was not maintainable and that the petitioners are not entitled to go behind the decree for eviction passed against them in O. S. 706/45.
6. The learned District Munsiff held that the petitioners are not entitled to the relief asked for and dismissed their application under Section 34 of the Act.
7. The learned counsel for the petitioners contends that the order dismissing the application under Section 34, was illegal and that notwithstanding the decree for eviction, his clients are entitled to invoke the rights granted to them under Section 34.
8. On the other hand, the learned counsel for the decree-holders contends that the decree for eviction is binding on the applicants and that they are not entitled to claim the right conferred under Section 34. The learned counsel also contends that the applicants not having availed themselves of the provisions contained in Section 25 (3) of the Malabar Tenancy (Amendment) Act-- Act 7 of 1954 -- they are not entitled to further relief and as such the dismissal of their application is perfectly valid.
9. To appreciate the contentions advanced one way or the other, it is necessary to consider the section as it originally stood along with the amendments incorporated by the Amending Act of 1951.
10. Old Section 33 gave a right to the tenant to offer to purchase the rights in the Kudiyiruppu at the market price provided it has been in the continuous occupation of the tenant or the members of his family for 10 years. This right was given only in a suit for eviction filed by the landlord and the 10 years period was calculated as on the date of the institution of the suit. The Malabar Tenancy (Amendment) Act 1951-- Act 33 of 1951 -- by Section 29, substituted the old section by a new Section 33. Under the new section, a tenant is given the right to purchase the rights of his immediate landlord in the Kudiyiruppu on payment of the current market price provided, the tenant or members of his family etc., have been in occupation for a period of not less than 10 consecutive years whether before or after the commencement of the Malabar Tenancy (Amendment) Act 1951. There is also a proviso enabling the tenant to pay the amount in annual instalments stated therein. This Section 33 has become the present Section 34, in view of the consequential renumbering of the sections by virtue of the Amending Acts.
11. It will be seen that in the section as it stands, there is no limitation, prima facie of the right of the tenant, to purchase the landlord's right in the Kudiyiruppu, though under the oldS. 33 as it was prior to the 1951 Amendment, that right was given only in a suit for eviction.
12. But the question is whether this section has got the effect of overriding decrees of Court when no further action has been taken by the tenant who claims the benefit of the section.
13. As stated already, there was an eviction decree in 1946 and that has become final. The argument of the learned counsel for' the petitioner is that this section is retrospective and it has got the effect of over-riding even the decrees. It is not possible to accept this contention. There is nothing to indicate that it is in any way retrospective and that decrees which have become final can be re-opened.
14. As stated earlier, no material has been placed to show the final decision in consequence of the decision in A. S. 57/47 and as it is, the materials on record only indicate that delivery has been effected on 4-10-1946 and recorded on 11-11-1946.
15. Wherever the Act wanted to disturb the possession taken in execution of a decree, it has made it very clear. For instance, the same Act, 33 of 1951, by which the original Section 33 was newly substituted, itself provides under Section 52 for such contingencies. Section 52 states that if a land-lord has obtained possession of a holding before the commencement of Act 33 of 1951 in execution of a decree passed by a Court on or after 1st July 1942 under Clause 5 or 6 under Section 20, the tenant is given a right to be restored to possession, if he makes an application in that behalf to the Court which passed the decree within 12 months from the commencement of the said Act. The same Act which enlarged the rights of Kudiyiruppu holders under Section 33, has not provided for any such right to be restored to possession.
16. In my opinion, it is Section 25 (3) of the Malabar Tenancy (Amendment) Act 1954 --Act 7 of 1954 -- that will apply to the present case. This is a case of an execution of a decree having been stayed under the terms of that Sub-clause and according to that Sub-clause, the tenant is given a right to apply to the Court to amend the decree or order on the ground that such decree or order would not have been passed, if the Malabar Tenancy Act 1929 as amended by Madras Acts 33 of 1951 and 7 of 1954 were in force immediately before the passing of the decree or order. The Sub-clause further provides that such an application must be filed within a month after due service of notice on an application to execute such decree or order or within six months of the commencement of that Act, whichever event happens earlier. It is further provided that' if on such application the Court finds that such decree or order would not have been made if the Act of 1929 as subsequently amended by the 1951 and 1954 Acts, were in force immediately before the passing of the decree, the Court shall, after receiving such additional pleadings and evidence as may be necessary, amend the decree or order-so as to be in accordance with the Malabar Tenancy Act 1929 as amended by the 1951 and 1954Amending Acts. Then the crucial provision that follows in the Sub-clause is that if no such application is filed within the time mentioned therein, or if such application is filed and dismissed, the decree or order may, subject to the provisions of the C. P. C. and the Limitation Act, be executed in accordance with its tenor.
17. There is no dispute that the tenant did mot file an application within the period men-Itioned under Section 25 (3) of Act 7 of 1954. Being aware of the decree passed against him for eviction it was his duty to apply to the Court for relief on the basis of the Section 33 as substituted by Act 33 of 1951. Not having done so, it is not open to him to ignore the decree for eviction passed against him and to apply de hors . that decree for independent relief under the present Section 34, corresponding to the old Section 33 of the Act.
18. Even proceeding on the basis that delivery has been effected on 4-10-46, there is nothing in the Act to indicate, apart from Section 25 (2) of the 1954 Act, the giving of a right for restoration to tenants of Kudiyiruppu.
19. The consequence of the non-filing of an application for amending the decree, is clearly indicated in Section 25 (3) of the 1954 Act and, that is, the decree-holder's right to execute the decree in accordance with its tenor.
20. In this view, the order of the learned District Munsiff is correct and this Civil Revision Petition is dismissed with costs.
21. C. M. P. 95 of 1956 (K) dismissed.