1. In this case the appellant obtained a decree for enjoinment of a tenant in South Malabar and, after depositing the amount ascertained as due to the tenant for improvements under the Malabar Improvements Compensation Act, applied before the District Massif for execution of Lis degree by ejectment of the tenant from all the lauds mentioned in the dearee or, in the alterative, he added that, it the tenants claimed that any improvements had been effected subsequent to the decree in Kudiyiruppus, Parambas and hills, execution might be granted of the other properties, that is, Nilams (doable crop lands), Palliyals (single crop lands) and Nattupoyils (seed-beds).
2. As observed by the District Munsif, this application for partial delivery was intended to be for the benefit of the tenants and to avoid farther demands for compensation owing to delay in execution. The District Munsif granted the appellant's prayer and ordered delivery of the Nilams, Palliyals and seed-beds and directed that execution in regard to other items should wait. He also directed that the tenant should give security for any relief that might be obtained against him in execution before he took the amount deposited for the value of improvements.
3. The District Judge held that partial ejectment, before compensation was finally settled upon the other lands which were left in possession of the tenant, was contrary to the provisions of Section 5 of the Malabar Tenants Improvements Act, and he, therefore, allowed the appeal and directed the District Munsif not to grant the petitioner's prayer till he finally determined the question of valuation.
4. Section 5 of Madras Act I of 1900 provides that any tenant to whom compensation in due shall be entitled to remain in possession until ejectment in execution of a decree or order of Court, The Section does not make the payment of the compensation a condition precedent to ajectment. Section 6 (b) contemplates revaluation being calculated on the condition at the time of ejectment and provides that the decree shall be varied in accordance with such order of the Court executing the decree. It does not provide that ejectment shall be stayed until revaluation is made.
5. There is an observation in Chowakkaran Eeloth v. (sic)Karuvalcte Parkum. 29 Ind. Cas 559. that a tenant retains in Malabar his status as a tenant until the improvements are paid for; but in Nynam Veetill Mayan Kutti v. Valappilakaih Kunhammai 44 Ind. Cas. 110. Sadasiva Iyer, J., doubted the correctness of the statement and I respectfully consider that it is not warranted by the language of the Section. There is no provision in Section 5 or in Section 6 to the effect that, until compensation is paid, no ejectment should be ordered. In the Fall Bench case in Puthiapnrayil Kannyan Kannyan v. Chennyanteakath uthiapurayil Alikutti 51 Ind. Cas. 286 , Seshagiri Aiyer, J., held that partial ejectment was not contemplated under the Act in any circumstances, but the majority of the Fall (sic)Bonsh held that a lessor was not entitled to eject a tenant in Malabar from a portion of his holding while an assignee of the reversion could do so on payment of the value of improvements to that part.
5. The District Judge was not correct in his opinion that ejectment of a tenant could only be ordered after the final determination of the value of improvements. If that was the state of the law it would be possible for a tenant to postpone eviction perpetually by continually making fresh improvements while the enquiry into the last application for revolution was going on.
6. The appellant's (the execution-petitioner's) application for execution of the whole decree was not open to any objection even though a petition for re-valuation might be pending, and the order actually passed by the District Munsif was, as already observed, a concession to the tenants whose consent was assumed to a course which would naturally be preferred to immediate eviction from the entire holding. The District Munsif's order requiring security to be given for any relief that might arise after the execution of the decree was not reasonable and must be set aside.
6. In the result the appeal must be allowed and the District Munsif's order will be restored with costs here and in the lower Appellate Court.
7. I will only add that, even if a plaintiff decree holder, who obtained a decree under the Act, is not entitled to eject the defendant until he pays the sum mentioned in the decree for improvements, it does not follow that, when he pays the amount be mentioned to toe de fendent or (when ha refused to take it) into Court, (he mere fact that the defend ant is asking for the farther valuation mentioned in Section 6 (3) operates as a stay of execution of the decree for ejectment, or that an order for ejectment should not be made until the (sic)onpplemental enquiry Contemplated in Section 6 (3) is made. None of the cases cited by the learned Counsel for respondents, vit., Kuthiapurayil Kannyan Baduvan v. Chsnnyan-teakath Puths purayil Alikuiti (3); Parameswara Ayyan v. Kittunni Valid Mannadiar 43 Ind. Gas. 173. Puthiyappandikasalayil (sic)Abdulli Koya v. Kallumpurath Kanaran 43 Ind. Cas. 6 .; Rummatha Vittil Kunhi Kuthalai Hai v. Antoni Govern 19 Ind. Cas. 563 . and Nanu Nair v. Kundan Ashtamurthi 47 Ind, Cas. 914 . support such a proposition. I agree with my learned brother in doubting the correst. ness of Chowakkaran Keloth v. Karuvalote Parkum (I) I agree with the order proposed by my learned brother.