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Manayil Krishnan Kutty Vs. Manikkath Govinda Menon - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1956)2MLJ117
AppellantManayil Krishnan Kutty
RespondentManikkath Govinda Menon
Excerpt:
- - but in the present case it is unnecessary to go into the question because in order that section 53 should be applied the payment should be prospective and we are satisfied that there has been no such payment......contends is that by reason of the yearly deposit which he had done under act vii of 1954, the rent decreed had been wiped off and therefore he can invoke the provisions of section 25(3). the learned counsel for the petitioner contends that because he has deposited the rent on the earlier date he can also call in aid the application of section 53 of act xxxiii of 1951. there can be no doubt whatever that section 53 contemplates payment of rent at future date, for as the unamended section stood the payment has to be made before the expiry of 12 months from the commencement of the act, which is october, 1951, that is, the payment should be made within 12 months from october, 1951. by the amending section 24 of act vii of 1954 the words 'from the commencement of the malabar tenancy.....
Judgment:

Govinda Menon, J.

1. This Civil Revision Petition arises out of the dismissal of I.A. No. 1100 of 1954 in E.P. No. 514 of 1946 in O.S. No. 92 of 1943 on the file of the District Munsif of Chowghat.

2. I.A. No. 1100 of 1954 was a petition under Section 23 of the Malabar Tenancy Act XIV of 1930 as amended by Act VII of 1954, under Section 53 of Act XXXIII of 1951 and under Section 25(3) of Act VII of 1954 for amendment of the decree in O.S. No. 92 of 1953. The present petitioner was a defendant in the suit which was one for ejectment and recovery of possession of certain properties with arrears of rent filed by the present respondent, and in that a decree was passed, by which, upon the plaintiff depositing to the credit of the defendants the sum of Rs. 691-1-11 for value of improvements less Rs. 44-1-0 for arrears of rent payable by the defendants, the defendants do surrender possession of the properties with all improvements thereon to the plaintiff. It was further ordered and decreed that the defendants do pay the plaintiffs future rent at Rs. 37-8-0 and Rs. 2-4-7 for sundries per year from 1st Dhanu 1118, that is, December-January 1942-43 onwards, till delivery of possession of the properties, or until the expiry of 3 years from the date of the decree whichever was earlier. It may be mentioned that in the suit itself there was no contest whatever regarding the right of the plaintiff to recover possession, as the District Munsif says that issues 1, 2 and 4 in the suit which related to the rate of rent, the plea of additional payments of rent made, and the claim for damages, were decided on special oath taken by the 2nd defendant, and that only the issue relating to value of improvements was decided and a finding recorded. Such being the case, the question now arises as to whether the petitioner is entitled to have the decree amended as prayed for. He invoked the provisions of Sub-section (3) of Section 25 of Act VII of 1954 which are in the following terms:

Where the execution of a decree or order stands stayed under the Madras Tenants and Ryots Protection Act, 1949, or Section 54 or Section 55 of the Malabar Tenancy (Amendment Act, 1951, the tenant may, within a month after due service of notice, on an application to execute such decree or order or within six months of the commencement of this Act, whichever event happens earlier file an application to the Court which passed the decree or order to amend the decree or order on the ground that such decree or order would not have been made if the Malabar Tenancy Act, 1929, as amended by Madras Act (XXXIII of 1951) and this Act, were in force immediately before, the passing of the decree or order. If, on such application being made, the Court finds that such decree or order would not have been made if the Malabar Tenancy Act, 1929, as amended by Madras Act (XXXIII of 1951) and this Act, were in force immediately before the passing of the decree or order, the Court shall, after receiving such additional pleadings and such further evidence as it considers just and necessary, amend the decree or order so as to be in accord with the Malabar Tenancy Act, 1929, as amended by Madras Act (XXXIII of 1951) and this Act. If no application is filed within the time allowed or if such application is filed and dismissed, the decree or order may, subject to the provisions of the Code of Civil Procedure, 1908 (Central Act V of 1908) and the Indian Limitation Act, 1908 (Central Act IX of 1908), be executed in accordance with its tenor.

3. Section 53 of Act XXXIII of 1951 is as follows:

Wiping off of arrears of rent in certain cases: If before the expiry of twelve months from the commenecement of this Act or such further time as the Collector may from time to time allow in respect of the lands situated in any tract or village, the tenant of a holding pays to his landlord the entire rent payable in respect of that holding under the Malabar Tenancy Act, 1929, as amended by this Act, for the six agricultural years beginning with 1944-45 and ending with 1949-50, the landlord shall not be entitled to recover from the tenant any arrears of rent due in respect of the holding for any previous agricultural years.

4. Section 53 of Act XXXIII of 1951, as amended by Section 24 of Act VII of 1954, is as follows:

(i) For the words 'from the commencement of this Act' the words brackets and figures 'from the commencement of the Malabar Tenancy (Amendment) Act, 1954', and for the words and figures 'six agricultural years beginning with 1944-45 and ending with 1949-50', the words and figures 'six agricultural years beginning with 1947-48 and ending with 1952-53' shall be substituted;

(ii) After the words 'as amended by this Act' the words, brackets and figures 'and the Malabar Tenancy (Amendment) Act, 1954' shall be inserted;

(iii) for the words 'any arrears of rent', the words 'any outstanding arrears of rent' shall be substituted'.

5. In our view the necessary sine qua not for the application of Section 25(3) of Act VII of 1954 is that there should be stay of the execution of a decree when it was passed. What the defendant-petitioner contends is that by reason of the yearly deposit which he had done under Act VII of 1954, the rent decreed had been wiped off and therefore he can invoke the provisions of Section 25(3). The learned Counsel for the petitioner contends that because he has deposited the rent on the earlier date he can also call in aid the application of Section 53 of Act XXXIII of 1951. There can be no doubt whatever that Section 53 contemplates payment of rent at future date, for as the unamended Section stood the payment has to be made before the expiry of 12 months from the commencement of the Act, which is October, 1951, that is, the payment should be made within 12 months from October, 1951. By the amending Section 24 of Act VII of 1954 the words 'from the commencement of the Malabar Tenancy (Amendment) Act, 1954, have been substituted for the words 'from the commencement of this Act'. That means a further period of 12 months is given from 19th March, 1954. In any event neither the unamended section nor the transformed one in Act VII of 1954 allows previous payments to be taken into consideration for its application. The section by its very nature is prospective and therefore it is difficult to say that if the previous payments have been made then that would wipe off the arrears of rent.

6. The learned District Munsif has held that Section 53 of Act XXXIII of 1951 as amended by Section 24 of Act VII of 1954 does not contemplate wiping off the arrears of rent which have become merged in a decree. He compares and contrasts the provisions of this section with the provisions of Section 15(1) of Act IV of 1938 regarding reliefs to indebted agriculturists, In Section 15(1) of Act IV of 1938 arrears which have merged in a decree are also included within the term of arrears of rent, whereas in Section 53 there is no such inclusion. From that it is argued that the Legislature purposely intended to restrict, the application of Section 53 to rents which have been overdue and not which have become merged in a decree. We think there is substance in this argument. But in the present case it is unnecessary to go into the question because in order that Section 53 should be applied the payment should be prospective and we are satisfied that there has been no such payment. Moreover, in the present case the arrears of rent decreed is only a sum of Rs. 44-1-0, while the respondent has to pay large sums of money as value of improvements to the petitioner. Therefore this is not a decree which can be considered to be one for arrears of rent. In these circumstances, we feel that the petitioner is not entitled to the amendment asked for.

7. The Civil Revision Petition is dismissed, but in the circumstances without costs.


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