1. The appellant in these appeals is a landlord in North Malabar who had obtained a decree to evict his tenant in 1932. The decree declared that a certain sum was due to the tenant by way of compensation for improvements and also gave a set-off of rent due by the tenants to the landlord. Up till the date of the applications with which I am concerned the decree had not been executed, though in 1936 the landlord applied to execute the decree and his application had calculated the amount of rent due up to that time for which he claimed a set-off as against the amount payable as compensation for improvements. However the execution application was not pressed and was eventually dismissed. After the passing of the Madras Agriculturists' Debt Relief Act, two applications were made by the tenant under Section 15. He deposited the rent due on his holding for faslis 1346 and 1347 and applied for an order that the arrears of rent due for previous faslis should be regarded as discharged. Orders were passed in his favour by both the learned District Munsiff of Nadapuram and the learned District Judge of North Malabar in appeal. These are second appeals against those orders.
2. Since these appeals were filed, it has been held by this Court that no appeal lies against such an order. A preliminary objection therefore that these appeals do not lie must be upheld. But I have been asked to treat the appeals as civil revision petitions under Section 115, Civil Procedure Code. Prima facie it seems to me that Section 115, Civil Procedure Code, will not apply to the circumstances of this case; but inasmuch as a liberal view of Section 115, Civil Procedure Code, has always been taken by this Court in matters affecting the interpretation of the Debt Relief Act, I have heard the appeals on their merits as if they fell within Section 115, Civil Procedure Code.
3. The argument for the appellant is that because he has declared in his execution application in 1936 that he is demanding a set-off for the arrears of rent due up to that date those arrears of rent must be deemed to have been paid at the time when the demand was made. The view taken by the Courts below on the other hand is that no such payment can possibly be effected until the balance due to the tenants as compensation for improvements has actually been paid. There is no direct authority oh either side which deals with all facts similar to those which' are before me but the general principle has been enunciated that the mere existence of a decree granting the right to the landlord to set-off the arrears of rent is not equivalent to the payment of those arrears. It seems to me that an ineffective execution. application and the recitals of that application cannot materially alter this situation. The payment of rent cannot, I think, be effected until payment has actually been made by the landlord of the compensation for improvements less the sum due to him for arrears of rent. Until that payment has been made it seems clear to me that neither party has made any payment of any kind to the other. I am of opinion, therefore, that the view taken by the Courts below is correct and that these appeals. must be dismissed with costs of respondents 1 to 3. The costs will be in one appeal only.