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K. Nanu Nair and anr. Vs. K.M. Kundan Ashtamurthi Nambudripad by Muktear Kundan Damodaran Nambudripad - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in47Ind.Cas.914
AppellantK. Nanu Nair and anr.
RespondentK.M. Kundan Ashtamurthi Nambudripad by Muktear Kundan Damodaran Nambudripad
Cases ReferredMallikarjunadu v. Lingamurti Pantulu
Excerpt:
.....payment of amount due and improvements within certain time, nature and effect of--peliminary and final decrees--civil procedure code (act v of 1908), section 47, order xxxiv, rules 7, 8, applicability of, to cases under malabar compensation act--order for re-valuation of improvements passed after act v of 1908, whether preliminary decree--amendment of application for re-valuation and order ^thereon as proceedings in execution--jurisdiction of executing court--appeal against order, maintainability of. - - ' it is thus clear that notwithstanding the passing of the new civil procedure code, as far as suits in malabar against mortgagees are concerned, there could be only one decree passed in a suit, under section 6, clause (1) of the malabar compensation for tenants' improvements act,..........the malabar compensation for tenants' improvements act was -passed in 1900 when the old civil procedure code of 1882 was in force. under. that code (according to the law as finally settled in this court) only one decree is passed in an ordinary mortgage suit for redemption in districts even other than the malabar district; see mallikarjunadu v. lingamurti pantulu 25 m. 244 the malabar compensation act by section 6, clause (1), treated a suit for redemption in malabar as a suit in ejectment and provided for only one decree which, of course, is a decree in ejectment. as regards decrees in ejectment there is no question of preliminary decrees and final decrees. as regards decrees for redemption passed in other districts under the transfer of property act and the old civil.....
Judgment:

Sadasiva Aiyar, J.

1. This is an appeal by two of the judgment debtors, mortgagees and tenants under the Malabar Compensation for Tenants' Improvements Act, the respondent being the mortgagor landlord who brought this suit for ejectment and obtained a decree. Under Section 3, Clause (2) of the Malabar Compensation for Tenants' Improvements Act (Madras Act I of 1900) 'ejectment' includes ' redemption' or 'recovery of possession of the. land mortgaged. The revised decree in the suit passed by the Subordinate Judge (the lower Appellate Court) on the 14th February 1913 was to the following effect: that on plaintiff's depositing into Court on or before the 14th day of August 1913 the amount shown above as due to various defendants less the arrears of rent and costs and future rent till the date of deposit, the defendants do surrender the plaint properties with all improvements thereon and if such payment is not made on or before the said 14th August 1913 the property shall be sold. This decree seems to have been substantially confirmed by the High Court on 9th February 1915. The decree expressly mentions the value of improvements due to the respective defendants as required by Section 6, Clause (1), of the Malabar Compensation for Tenants Improvements Act and does not order the taking of any accounts either as regards the amount which may be found due under the mortgage on the date fixed for redemption as in an ordinary mortgage decree or as regards improvements. The Malabar Compensation for Tenants' Improvements Act was -passed in 1900 when the old Civil Procedure Code of 1882 was in force. Under. that Code (according to the law as finally settled in this Court) only one decree is passed in an ordinary mortgage suit for redemption in districts even other than the Malabar District; see Mallikarjunadu v. Lingamurti Pantulu 25 M. 244 The Malabar Compensation Act by Section 6, Clause (1), treated a suit for redemption in Malabar as a suit in ejectment and provided for only one decree which, of course, is a decree in ejectment. As regards decrees in ejectment there is no question of preliminary decrees and final decrees. As regards decrees for redemption passed in other districts under the Transfer of Property Act and the old Civil Procedure Code, there was only an order absolute for foreclosure or for sale provided for, after the simple decree for redemption was passed. There was under these Acts no preliminary decree and no final decree as distinguished from the simple decree for redemption, which was dated on the day that the judgment was pronounced in the suit. The Malabar Compensation Act, however, made departures from the Transfer of Property Act and the old Civil Procedure Code as regards the procedure in a suit for ejectment brought against tenants [which term includes mortgagees, see Section 3, Clause (1)], by (1) providing in Sub-sections 3 and 4 of Section 6 for the passing of an order as to revaluation of improvements even after decree and before ejectment by an order of Court executing the decree, (2) by providing for the varying of the decree (originally passed) in accordance with the said order of the Court executing the decree re-valuing the improvements, (3) by providing that the matters relating to re valuation and to variation of the decree in accordance with such a re-valuation shall be deemed to be questions relating to the execution of the decree within the meaning of Clause (1) of Section 244 of the old Code of Civil Procedure and (4) by not providing for the passing of an order for sale either nisi or absolute in such suits (see repealed Sections 88, 89, 92 and 93 of the Transfer of Property Act). The new Civil Procedure Code of 1908 by Order XXXIV, Rule 7, (see marginal note) styled the only decree passed in a suit for redemption in other districts under the old Code as a preliminary 'decree and provided newly by Order XXXIV, Rule 8, for the passing of a final decree in a redemption suit instead of the order absolute for sale provided for in the Transfer of Property Act, the provisions in which as regards decrees in mortgage suits were repealed by the new Civil Procedure Code. The new Civil Procedure Code, however, .makes, no reference to the Malabar Compensation Act, Section 6. under which decrees in suits against mortgagees of Malabar are directed to be passed in a particular form which, makes no pro-; vision for the two kinds of decrees, preliminary' and 'final'. The new Civil Procedure Code in Section 4, Clause (1), says:, 'in the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise effect any special or local law now in force or any special jurisdiction or power conferred or any special form or procedure prescribed by or under any other Taw for the time being in force.' It is thus clear that notwithstanding the passing of the new Civil Procedure Code, as far as suits in Malabar against mortgagees are concerned, there could be only one decree passed in a suit, under Section 6, Clause (1) of the Malabar Compensation for Tenants' Improvements Act, and not two decrees, 'preliminary ' and 'final'. Provisions like directions for sale in default, allowing time to pay moneys declared as due and so on, not inconsistent with the Improve-merits Act and directed or allowed by the new Civil Procedure Code to be mentioned in decrees for redemption or ejectment, can, of course, be mentioned in decrees passed in suits falling under the Compensation Act also.

2. I am, therefore, of opinion that the decree passed in the present suit, though passed in 1913 after the new Civil Procedure Code came into force, was not a preliminary decree under Order XXXIV, Rule 7, of the new Civil Procedure Code, to be followed by a final decree under Rule 8, but that it is only the one decree which has to be passed under Section 6, Clause (1), of the Malabar Compensation Act, though this one decree is liable to be revised by orders passed by the executing Court under Section 6, Clause 3. .

3. I shall now proceed to set out the several irregularities which have been committed in this case. The plaintiff in ejectment (the decree-holder), instead of treating this decree as the only decree in ejectment, treated it as a preliminary decree passed under the Civil Procedure Code and applied under Order XXXIV, Rule 8, on 31st July 1915, to the District Munsif for a final decree for redemption. On the 27th August 1915 the contesting defendants appeared and without objecting to the petition to pass a final decree as one not provided for by law contended that the value of improvements mentioned in the decree should be enhanced before they are ejected, and then on the 10th September 1915 filed a statement showing the further improvements made by them between 1913 and 1915. It is clear from Section 6, Clause 3 of the Act, that it is only the Court executing the decree that can re-value the improvements. Unless the application to pass a final decree is treated as an execution application, the Court considering that application cannot be called a Court 'executing the decree' and hence had no jurisdiction to pass orders, as regards the re-valuation of improvements. The District Munsif, however, (neither party objecting) appointed a Commissioner to re-value the improvements, and the Commissioner's report made in April 1916 and the objections thereto were considered by the District Munsif on 30th October 1916, when he pronounced a partial judgment dealing with most of the matters argued before him in view to pass a final decree as prayed for by the plaintiff. At the end of that judgment of 30th October 1916, he allowed the plaintiff a week's time to deposit the balance payable by him for the value of the excess improvements and adjourned the matter for one week, that is, to the 6th November 1916 in order to complete his judgment before passing the final decree in accordance with such judgment, as some minor questions (as to costs, as to the rights to gather the second crops on some lands, the liability for payment of revenue, etc.) had still to be disposed of. Then on the 6th November 1916 be completed his judgment by expressing his opinions on these points also. In accordance with this judgment of 6th November 1916 a formal final decree, dated the same day,. 6th November 1916, seems to have been drawn up in the Munsif's Court.

4. Against the order of the District Munsif of 6th November 1916 increasing the value of improvements, an appeal was filed to the Sub Court at Palghat. The temporary Subordinate Judge dismissed the appeal, on a preliminary objection taken by the , respondent to the effect that the appeal was misconceived, because the appeal was filed not against the final decree but against the order passed on an interlocutory petition made by the judgment-debtor for the enhancement of the value of improvements, though that interlocutory petition was made as an answer to the decree-holder's petition for the passing of a final decree. The learned Subordinate Judge further held that an application for a final decree is not an application arising in execution of the decree and held, therefore, that no appeal lay under Section 47, Civil Procedure Code. I think that no serious notice need be taken of another contention urged Before us by Mr. Parameswara Aiyar for the respondent that the appeal ought to have been against the incomplete judgment of 30th October 1916 (and not against the complete order of 6th November 1916).

5. The appeal before us is against the order of the Subordinate Judge dismissing the appeal to him on the preliminary point above stated. I think that the order having been followed up by the drawing up of a final decree, the technical objection upheld by the lower Appellate Court that the appeal to it was made against the order and not against the final decree and, therefore, incompetent is unsubstantial, the grounds urged in appeal against the order applying of course to the final decree. Further, on the view which I have expressed above, there being no final decree contemplated by the Malabar Compensation Act, the application of the decree-holder, though styled as one for the passing of the final- decree, was in sub-stance one for execution of the decree already passed. As it was, however, not in proper form, the learned District Munsif ought to have directed it to be amended by quoting the proper order and rule applicable and then passed his orders in execution. The order altering the compensation value would, under the Compensation Act, fall within the description of an order passed by the executing Court in execution and would be deemed to have fallen under Section 244 of the old Civil Procedure Code if that Code was in force and would, after the present Code came into force, fall under Section 47 thereof (see Section 8 of the General Clauses Act). Hence an appeal lay against such an order. If the decree is altered in accordance with such order and if the order itself is set aside on appeal, the alteration of the decree is cancelled ipso facto, just as when a preliminary decree in the plaintiff's favour is set aside on appeal and the suit is dismissed, the final decree drawn up pending the appeal loses all its legal effect.

6. This appeal and the memorandum of objections have, therefore, to be allowed and I would set aside the Sub-Judge's order and remand the case to him with directions to him to order the plaintiff to amend his application for the passing of a final decree as an application in execution (the amendment may be made by filing a separate paper in the proper form prescribed for an execution application), to treat, after such amendment is made, the order of the District Munsif of 6th .November 1916 as an order parsed by the executing Court for re-valuing the improvements, to treat the appeal and the memorandum of objections filed before him (the Subordinate Judge) as an appeal and as an objection memorandum against that order filed against an order passed under Section 47 and to dispose of them in due course according to law. The parties will bear their respective costs in this appeal.

Oldfield, J.

7. I agree.


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