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Komancheri Tarwad Karnavan Chathu Nayar Vs. Vengalil K. Janaki Amma - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1946Mad251; (1946)1MLJ8
AppellantKomancheri Tarwad Karnavan Chathu Nayar
RespondentVengalil K. Janaki Amma
Cases ReferredGopalan v. Sankaran Nair
Excerpt:
- - 442 for holding that the sale is good. (3) the amount of compensation for improvements made subsequent to the date up to which compensation for improvements has been adjusted in the decree and the re-valuation of an improvement for which compensation has been so adjudged, when and in so far as such re-valuation may be necessary, with reference to the condition of such improvement at the time of ejectment as well as 'any sum of money accruing due to the plaintiff subsequent to the said date for rent or otherwise in respect of the tenancy, shall be determined by order of the court executing the decree and the decree shall be varied in accordance with such order......the rent against compensation and, especially the power conferred upon the court by clause (3) to value improvements subsequent to the date of the decree and re-value the original improvements as on the date of ejectment and to vary the decree accordingly, show beyond question that what is contemplated under the act is a final adjustment of all rights and obligations between the two parties. sub-section (3) of section 6 speaks of any sum of money accruing due to the plaintiff subsequent to the date up to which compensation for improvements has been adjudged in the decree and it is provided that this amount shall also be determined; and obviously this is for the purpose of set-off to be allowed under sub-section (2). it follows that in a case coming under the act, the court has.....
Judgment:

Chandrasekhara Aiyar, J.

1. This is an appeal by the first respondent against the order of the Subordinate Judge of South Malabar at Calicut in an execution petition. The decree was for redemption of a kanom and was passed on 29th June, 1923, in favour of the mexharthdar. It determined also the amounts due to the several defendants as value of improvements and directed that on the plaintiff paying into Court the kanom amount and the value of the improvements, less certain damages payable by the second defendant and future rent until surrender, the defendants should give up possession of the property to the plaintiff. This decree was attached by a creditor of the decree-holder who had obtained a decree against him in O.S. No. 847 of 1932. The decree was sold in auction and was purchased by that decree-holder and the application for execution is by her.

2. Execution was resisted by the first respondent (second defendant) on several grounds. Chief among them are (a) that the sale of a decree in Court auction is invalid and therefore the petitioner derives no rights under her purchase; (b) the deposit of the kanom amount and the value of improvements is a condition precedent to execution and as it was made more than twelve years after the date of the decree execution is barred; and (c) the direction that the amount payable by the plaintiff should be set off against future rent until surrender means only rent for three years and not for the full period from the date of the decree up to the date of execution as claimed by the petitioner. The learned Subordinate Judge, as did the learned District Munsiff, overruled the objections and allowed execution to proceed. The second defendant has preferred this second appeal raising the same objections.

3. There is a memorandum of objections by the respondent-petitioner in the Court below, that she should be given credit for Government revenue paid by her which the defendants were bound to pay and that as regards the value of improvements which the decree directed should be paid to the sub-tenants and which were actually paid by the original decree-holder, the learned Subordinate Judge was wrong in holding that such payments are not binding and that the value should again be deposited in Court as condition precedent to the delivery of possession.

4. Rule 178 of the Civil Rules of Practice no doubt says that no decree shall be ordered to be sold in execution of another decree; but when such a sale takes place without any objection being raised by the judgment-debtor, the sale cannot be held to be void or inoperative. On the other hand, there is the authority of Subbaraya Rowthu v. Kuppuswami Aiyangar I.L.R.(1908) Mad. 442 for holding that the sale is good.

5. There is no substance in the contention that the deposit of the kanom amount and the value of improvements was a condition precedent to the execution of the decree. The payment is no doubt a conditon precedent to the recovery of possession but not to the filing of an execution petition for such recovery. The present execution petition is within time and the obligation imposed by the decree as regards payment is that it should be made before the properties are surrendered.

6. The third point about future rent is a bit more complicated. Under Order 20, Rule 12, Civil Procedure Code, where a suit is for the recovery of possession of immoveable property and for rent or mesne profits, the Court in directing possession can direct an enquiry as to rent or mesne profits from the institution of the suit until the delivery of possession to the decree-holder or the relinquishment of possession by the judgment-debtor or the expiration of three years from the date of the decree, whichever first occurs. Krishnan v. Kunhi Moidin Kutti (1899) 9 M.L.J. 334 and Godavarti Raja v. Uttaradi Matam Sri Ramachandraswami Varu : AIR1943Mad354 are authorities for the proposition that where a decree directs payment of future rent till surrender, it must be taken to mean, in conformity with the requirement of the Civil Procedure Code, that it is a direction for payment of rent for three years or until surrender, whichever event first occurs. These decisions would govern us, but for certain provisions of the Malabar Compensation for Tenants Improvements Act (I of 1900), which it is contended, alter the position in favour of the decree-holder and enable him in a case governed by the Act to set off against the improvements future rents until the actual date of surrender of possession. Both the lower Courts took this view.

7. How far it is right has now to be examined. It may be stated at once that the view of the learned Subordinate Judge that because the decree provides for the payment of future rent until surrender it must be taken that the decree means what it says and the period for which rent is to be allowed is not open to question must he held to be wrong in view of the decisions cited above. The answer to the question raised will depend upon the effect to be given to the provisions of the Malabar Compensation for Tenants Improvements Act and how far they could be said to abrogate by necessary implication the requirements of Order 20, Rule 12 of the Civil Procedure Code.

8. The Act referred to above provides in Section 5 for the payment to the tenant of compensation for improvements on ejectment. The second part of the section is relevant and important for our present purposes and it is in these terms:

And every tenant to whom compensation is so due shall, notwithstanding determination of the tenancy or the payment or tender of the mortgage money (if any), be entitled to remain in possession until ejectment in execution of a decree or order of Court.

Sub-clause (2) says:

A tenant so continuing in possession shall during such continuance hold as a tenant subject to the terms of his lease or of the mortgage, as the case may be.

9. Under Section 6 the Court shall pass a decree declaring the amount found due for compensation and ordering that on payment by the plaintiff into Court of the amount so found due and also the mortgage money, the defendant shall put the plaintiff into possession of the land with the improvements thereon. Sub-clauses (2) and (3) of the section run in these terms:

(2) If in such suit the Court finds any sum of money due by the defendant to the plaintiff for rent or otherwise in respect of the tenancy, the Court shall set off such sum against the sum found due under Sub-section (1) and shall pass a decree declaring as the amount payable to him on ejectment the amount (if any), remaining due to the defendant after such set-off.

(3) The amount of compensation for improvements made subsequent to the date up to which compensation for improvements has been adjusted in the decree and the re-valuation of an improvement for which compensation has been so adjudged, when and in so far as such re-valuation may be necessary, with reference to the condition of such improvement at the time of ejectment as well as 'any sum of money accruing due to the plaintiff subsequent to the said date for rent or otherwise in respect of the tenancy, shall be determined by order of the Court executing the decree and the decree shall be varied in accordance with such order.

10. It is thus clear from the aforesaid provisions that the decree in ejectment against the tenant does not determine the tenancy and convert him into a trespasser. He has a statutory right to continue in possession after decree until he is paid the value of his improvements. In other words, there is a tenancy created by the statute for the period during which the decree is in execution; and during this period the tenant holds under the terms of his lease. The continuance of the tenancy notwithstanding ejectment, the provision for payment for compensation for improvements and for set-off of the rent against compensation and, especially the power conferred upon the Court by Clause (3) to value improvements subsequent to the date of the decree and re-value the original improvements as on the date of ejectment and to vary the decree accordingly, show beyond question that what is contemplated under the Act is a final adjustment of all rights and obligations between the two parties. Sub-section (3) of Section 6 speaks of any sum of money accruing due to the plaintiff subsequent to the date up to which compensation for improvements has been adjudged in the decree and it is provided that this amount shall also be determined; and obviously this is for the purpose of set-off to be allowed under Sub-section (2). It follows that in a case coming under the Act, the Court has jurisdiction to award future rent till the date of actual surrender and this jurisdiction must be exercised not only at the time of the decree but also later in the course of execution. In view of the provisions referred to above of the Act, a fresh suit for rent for subsequent period would seem to be barred as pointed out in Gopalan v. Sankaran Nair : AIR1945Mad197 .

11. It was urged that this view would enable the landlord to wait indefinitely without paying the value of improvements and claiming rent for more than the prescribed period of three years. But this argument ignores the very policy underlying the Malabar Compensation for Tenants Improvements Act, namely, the landlord should not by way of ejectment proceeedings determine the tenancy at his sweet will and pleasure without being under an obli-gation to pay for improvements and that till payment the tenant has a right to hold the property as tenant on condition of paying the rent reserved by the deed. So if the landlord keeps quiet without paying for the improvements the tenant loses nothing. He continues to hold as before and when he is ejected he must get what is due to him for improvements setting off against it what is due for rent by him.

12. The appeal fails and is dismissed with costs. There is a memorandum of objections by the respondent. The revenue of the property is to be paid by the tenants. If they did not pay, the landlord will of course have to pay it and recover it from them. The District Munsiff allowed to the petitioner the revenue that he paid subsequent to the filing of the suit and previous to the filing of the execution petition, the payments being evidenced by the receipts Exs. P-2 (i) and P-2 (l). ' The Subordinate Judge disallowed this on the ground that there was no direction in the decree awarding future revenue. It is obviously wrong. The direction of the District Munsiff will be restored.

13. The next point relates to the value of improvements paid to the sub-tenants and dealt with by the District Munsiff in paragraph 18 of his judgment discussing point No. 5. It is not disputed that the payments were made in pursuance of the direction in the decree. The persons who received the payments were entitled to receive them acknowledged their receipt and applied to the Court for recording satisfaction, which prayer was granted. It is not for the appellant to contend that as the decree provides for payment into Court, payments made outside the Court to persons entitled to receive them should not be recognised. The surrender of their rights in the land by the sub-tenants in favour of the landlord may not bind the appellant-tenant; but that is a different question. The improvements were made by the sub-tenants. They are the persons entitled to their value. The decree-holder paid the amounts into their hands already and satisfaction was recorded. There is no point in asking the landlord to deposit the said amounts into Court as condition for recovery of possession; the 1st respondent is not entitled to the sum and the sub-tenants cannot get them either. As pointed out by the learned District Munsiff the appellant-tenant may have rights of his own to enforce against the sub-tenants and the landlord who now stands in their shoes. This portion of the lower Court's order directing the respondent to deposit in Court the value of improvements payable to the defendants 44, 51, 57, 58, 63, 71, 83, 84, 90, 101 and 113 as a condition precedent to delivery of possession to the petitioner will stand set aside.

14. The memorandum of objections is hence allowed but without any order as to costs as the respondent has got costs in the appeal.


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