1. This appeal is directed against the judgment of Ganesan, J. under the following circumstances. In O. S. No. 176 of 1111 on the file of the court of the Additional District Munsif Kuzhithurai, the first plaintiff obtained a decree for eviction against the respondents, their tenants. This decree was granted on 7th Dhanu 1124(21-12-1948). As per the decree, the landlord (plaintiff) was liable to pay the tenants 280 fs. 1 ch. and 2 ca, on account of the value of improvements effected by them and the tenants were liable to pay the landlord michavaram or rent at the rate of 190 fs. per annum upto the date of recovery of possession or three years from the date of the decree, whichever was earlier. Three years later, the first plaintiff filed E. P. 110 of 1951 after depositing into court 280 fs. 0 ch and 2 ca. In this execution petition he prayed for recovery of possession of the property and also for recovery of the michavaram due by the tenants for three years from the date of the decree at the rate of 190 fs, per annum. The tenants failed to pay the michavaram due by them. E. P. 110 of 1951 was pending for sometime.
Due to an injunction granted in another suit the plaintiffs could not obtain delivery in E. P. 110 of 1951. Consequently the petition was dismissed. The decreeholder died and plaintiffs 2 and 3 were impleaded on 19-8-1960. The resourceful tenants denied that plaintiffs 2 and 3 were the sons of the decree-holder and a finding was given by the court that they were the sons. This was done in E. P. 831 of 1959. Subsequently, on 12-2-1963, the tenants filed E. A. 141 of 1963 in which they claimed that the value of improvements decreed in their favor of 21-12-1948 should be refixed and that a Commissioner should be appointed in that behalf. This was opposed by the plaintiffs and it was held by the court that it was not open to the tenants to re-agitate the quantum of improvements which had been already fixed. Then the tenants filed E. A. 1135 of 1962 on 15-11-1962 in which they prayed for two months time for payment of the rent arrears of 570 fs. due by them. They also contended that they were not liable to be evicted from the property because they were protected by the provisions of the Travancore-Cochin Act VIII of 1950. Then the landlords filed a petition in which they said that the tenants were not entitled to the protection of the Act and that even assuming that the Act was applicable to them they were disentitled to the benefits of the Act because they had committed acts of waste. A Commissioner was appointed and accepting the report of the Commissioner, the court held that acts of waste had been committed by the tenants and consequently directed eviction.
In appeal, the appellate court set aside the order of eviction on the ground that no wilful act of waste had been committed. The appellate court also found that the tenants having deposited the arrears of rent due by them, though belatedly, had not forfeited the benefits under the Act. Against this the landlords preferred an appeal to this court and the learned Judge dismissed the appeal without costs. It is against this judgment that the present Letters patent appeal has been filed.
2. Under Sec. 4 of the Holdings (Stay of Execution Proceedings) Act, 1950, Travancore-Cochin Act VIII of 1950, not withstanding any law to the contrary proceedings in execution of a decree in a suit for recovery of possession of a holding shall, so far as they relate to the delivery of possession of the holding, bestayed. Admittedly, the property in question is a holding within the meaning of Sec. 2 of the Act. There is a proviso to Section 4 which runs as follows-
'Provided that nothing contained in this section shall preclude the court--(a) from ordering the delivery of possession of the holding to the decree-holder if the court is satisfied either that the lessee has committed intentional and wilful acts of waste or that he has filed to pay the rent for the holding which has accrued due after the commencement of this Act; or (b) from granting any other appropriate relief to which the decree-holder may be entitled.'
In Civil App. No.469 of 1965(SC) (Puliah Nadar v. Harihara Iyer) the Supreme Court has authoritatively construed Section 4 of this Act. The relevant observations of the Supreme Court read as follows-
'The only other point argued on behalf of the appellant was that, in any case, under the Travancore Act 8 of 1950, the execution court had the discretion not to grant the prayer for dispossession of the appellant even if there had been default in payment of pattom in accordance with the decree. Section 4 of the Act directs stay of execution of decrees for eviction, and the proviso to that section lays down that nothing in this section shall preclude the court from ordering the delivery of possession of the holding to the decree-holder, if the court is satisfied either that the lessee has committed intentional or wilful acts of waste or that he has failed to pay the rent of the holding which has accrued due after the commencement of the Act. It was urged that this proviso only gives a power to the execution court to deliver possession and does not contain any mandate that, if there is any failure to pay arrears of pattom, the execution court must direct delivery of possession. Reliance was placed on the decision of the Travancore High court in Sanku Krishnan v. Hari Prabhu Govinda Prabhu and others, AIR 1953 Trav-Co 333 to urge in this case it was open to the execution court to exercise its jurisdiction judicially and to refuse the prayer for delivery of possession on the ground that the appellant had been bona fide seeking reduction of pattom payable for Kumbhom 1956-57 from the execution court. There are two reasons why this submission cannot be accepted. The first is that, once the bar for execution of the decree by delivery of possession enforced by the principal clause of Section 4 of the Travancore Act 8 of 1950 was removed because of the applicability of the proviso, the execution court had the duty to give full effect to the decree, execution of which was sought from it by the respondent. The decree had given an absolute right to the respondent to dispossess the appellant on failure to pay the future pattom by the end of Kanni and Kumbhom each year and once the appellant committed a default, the respondent was entitled to dispossess him. There was, therefore, no reason why the court could refuse to order delivery of possession'.
It is therefore, clear from the observations of their Lordships that the moment it is established that subsequent to the commencement of the Act the tenants have failed to pay the rent of the holding, the decree granted before commencement of the Act directing eviction straightway, regardless of the question whether the failure to pay the rent was wilful or intentional. The words 'intentional' and 'wilful' used in clause (a) of the proviso quality only to acts of waste and not failure to pay the rent.
3. Now we shall consider whether in this case the tenants, against whom a decree for eviction was granted on 21-12-1948, committed default in payment of rent subsequent to the commencement the Act. Travancore Cochin Act VIII of 1950 came into force on 21-5-1950, that is to say, about two years after the grant of the decree for eviction against the tenants. According to the decree, the tenants were liable to pay michavaram or rent at the rate of 190 fs. per annum for a period of three years subsequent to 21-12-1948, the date of decree. The tenants did not pay the arrears of rent for the three years subsequent to the Act, with the result the decree-holder had to file E. P. 110 of 1951 for recovery thereof. Even during the pendency of that execution petition the tenants failed to pay the arrears of rent. In E. P. 1135 of 1962 the tenants filed an application praying for two months time for payment of the arrears of rent due by them. At the time this application was filed, two years had elapsed since the commencement of the Act and the tenants actually deposited Rs. 481-38, the arrears due, only on 8-1-1963. It is remarkable that they failed to pay the arrears till 1963. Even if the Act required a wilful and intentional failure to pay the rent arrears as a condition precedent to the court denying them the protection of the act, that condition would be fully satisfied in this case. We, therefore, hold that the tenants have failed to pay the rent accruing due after the commence of the act and have thereby disentitled themselves to protection under the Act. The Court has no option but to direct execution of the decree which had been granted for eviction prior to the commencement of the Act. The learned Judge failed to consider this aspect of the matter, though this question had been raised by the landlords even in the executing court and the first appellate court. The executing court failed to deal with this question because, upon the ground of wilful act of waste, it decided against the tenants and directed eviction. As for the first appellate court, it proceeded on the erroneous basis that unless the tenants committed intentional or wilful default in the payment of rent, they would be entitled to the protection under the act. That is a view which is clearly contrary to the law as expounded by the Supreme Court. As we hold that the tenants are not entitled to the benefits of the Act because they have committed default in the payment of rent falling due subsequent to the commencement of the Act, we think it unnecessary to consider the question whether there has been any intentional or wilful act of waste on the part of the tenants.
4. In the result, we allow the appeal and direct eviction of the tenants forthwith. The executing court will, on payment of batta, if it has not been paid, direct delivery forthwith. No order as to costs.
5. Appeal allowed.