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Rajah Sir Annamalai Chettiar by His Authorised Agent K. Ponnusami Iyer Vs. Kadiyala Pedda Genganna and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1942)1MLJ336
AppellantRajah Sir Annamalai Chettiar by His Authorised Agent K. Ponnusami Iyer
RespondentKadiyala Pedda Genganna and ors.
Excerpt:
- - the subordinate judge held that section 132 of the estates land act makes section 112 of that act applicable to sales held under the decrees of revenue courts and that as the notice under section 112 was not given, the sales are bad. i am not satisfied about the correctness of the statement that the existence of the other irregularities was not denied......section, i.e., section 111. section 111 provides thatwhere an arrear is not paid within the revenue year in which it accrued due, it shall be lawful for the landholder to sell the holding or any part thereof in the manner, hereinafter provided, an satisfaction of the arrear and of interest thereon and of costs, if any, of the sale.then section 112 provides thatwhen the landholder to whom an arrear is due intends to avail himself of the powers given by the last preceding section, he shall serve on the defaulter through the collector a written notice stating the amount due for arrears, interest and costs, if any, the period for which and the holding in respect of which it is due, and informing him 'that if he does not pay the amount or institute a suit before the collector.....
Judgment:

Somayya, J.

1. The plaintiff-appellant filed two suits out of which these second appeals arise for possession on foot of sales held in execution of rent decrees obtained by him in the Revenue Court. The contesting defendant in each suit is the former ryot against whom suits for arrears of rent were filed in the Revenue Court. Decrees were obtained and in execution of these decrees, the holdings were brought to sale and were purchased by the plaintiff himself. The present suits are filed for possession on foot of those sales. The lower appellate Court dismissed the suits on the ground that the notice under Section 112 was not given to the ryot. The Subordinate Judge held that Section 132 of the Estates Land Act makes Section 112 of that Act applicable to sales held under the decrees of Revenue Courts and that as the notice under Section 112 was not given, the sales are bad.

2. I do not agree with the above conclusion. Section 132 provides thus:

The provisions of this chapter (Chapter VI) shall be applicable as far as may be, to the execution by a Revenue Court of any decree for arrears of rent.

It will be noticed that Section 112, which occurs in the same chapter provides for the issue of notice by the landholder in a case where he intends to avail himself of the powers given by the last preceding section, i.e., Section 111. Section 111 provides that

Where an arrear is not paid within the revenue year in which it accrued due, it shall be lawful for the landholder to sell the holding or any part thereof in the manner, hereinafter provided, an satisfaction of the arrear and of interest thereon and of costs, if any, of the sale.

Then Section 112 provides that

When the landholder to whom an arrear is due intends to avail himself of the powers given by the last preceding section, he shall serve on the defaulter through the Collector a written notice stating the amount due for arrears, interest and costs, if any, the period for which and the holding in respect of which it is due, and informing him 'that if he does not pay the amount or institute a suit before the Collector contesting the right of sale within thirty days from the date of service of the notice, the said holding or any part thereof specified in the said notice will be sold. Such notice shall be delivered to the Collector within one year from the end of the revenue year for which the arrear is due.

3. It will be noticed that in this section it is only the arrear of rent, the interest and costs of the sale that can be recovered and nothing more. If the suit is filed in the Revenue Court for arrears apparently, the costs awarded by the decree cannot be recovered under Section 112. Another point is that the notice under Section 112 must be 'delivered to the Collector within one year from the end of the revenue year for which the arrear is due'. In the case of a suit for recovery of arrears of rent, the Estates Land Act provides a period of three years within which the suit may be filed. So in respect of a suit say for fasli 1330, the suit may be filed within three years thereafter and it may take a year or two for the decree to be passed. If, afterwards, the landholder wishes to exec ate that decree, it is impossible for him to comply with the last portion of Section 112, paragraph (1) just set out, viz., to deliver to the Collector notice within one year from the end of 1330, which is the revenue year for which the arrear became due. The very reading of Sections 111 and 112 shows, to my mind that it is absurd to talk of these sections being applicable, to a case of execution of a rent decree passed by a Revenue Court. Section 113 goes with Section 112. Then Section 114, refers to the amount specified in the notice under Section 112 not being paid and no suit contesting the right of sale having been instituted, or the suit having been instituted and being decided adversely to the ryot. This again cannot possibly apply to execution of decrees by Revenue Courts of their own decrees for rent. Then Section 115 again cannot possibly apply because it says that

If no suit has been instituted, such application shall be made within forty-five days of the posting by the Collector of intimation of service under Section 113.

And Clause 2 of the section says:

If a suit has been instituted and it has been disposed of against the defaulter or withdrawn, such application shall be made within thirty days of the date of the disposal or withdrawal.

These two clauses of Section 115 again cannot possibly apply to a case of execution of the decrees of Revenue Courts.

4. It is very doubtful whether Section 116 again applies because it says:

On receipt of such application, the Collector shall issue notice to the parties and after hearing-such of them as appear shall determine the extent of land to be sold, the lots if any in which it shall be sold, the order in which the lots shall be sold and the estimated value of each lot and shall order the sale, appoint an officer to conduct the sale, draw up the proclamation of sale....

But assuming it is applicable in this case, as the lower Courts have pointed out, the Collector did issue notice to the parties and he determined the various matters provided under Section 116. The proclamation also seems to have been settled. It is said that the Deputy Tahsildar of Puttur was appointed the officer to conduct the sale under Section 116 and that that officer did not fix the date, time and place of the sale. It is said that there are further irregularities in the said. The Subordinate Judge has not dealt with these irregularities and has not given his findings. In one sentence he says that the existence of the irregularities was not denied and then declined to go in detail into those defects because he held that the omission to issue a notice under Section 112 was fatal to the plaintiff's case. I have held that Section 112 is inapplicable to a case of this kind and therefore the decree of the Subordinate Judge cannot be sustained.

5. I do not desire to go into the other irregularities alleged, nor do I express any opinion as to whether the irregularities, if they exist, are sufficient to non-suit the plaintiff. These and other questions must be decided by the Subordinate Judge. I am not satisfied about the correctness of the statement that the existence of the other irregularities was not denied. It will be open to the plaintiff to dispute the existence of the other irregularities alleged by the defendants and the whole question will be open to the lower appellate Court. The only question which I decided is that Section 1.12 is inapplicable to cases of this kind. I accordingly set aside the decrees of the lower appellate Court in both the second appeals and remand the appeals for fresh disposal according to law. Costs will abide and be provided for in the revised decrees. The court-fee paid on the memorandum of second appeals will be refunded. No leave to appeal.


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