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Neelacanta Pillai and ors. Vs. Chellian Nadar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1973)2MLJ295
AppellantNeelacanta Pillai and ors.
RespondentChellian Nadar
Cases ReferredMudaliar v. K. Pillai
Excerpt:
- .....execution court must direct delivery of possession, held that once the bar for execution of the decree by delivery of possession enforced by the principal clause of section 4 of the travancore act viii of 1950 was removed because of the applicability of the proviso, the execution court had the duty to give full effect to the decree, the execution of which was sought from it by the respondent and that the decree gives an absolute right to the respondent to dispossess the appellant on failure to pay the future pattom and once the appellant committed a default, the respondent was entitled to dispossess him and there was no reason why the court could refuse to order delivery of possession.9. if the construction put on the proviso that the decree-holder is entitled to possession when the.....
Judgment:

P.S. Kailasam, J.

1. The respondents in E. P. No. 835 of 1959 are the appellants herein. E.P.No. 835 of 1959 was filed by the judgment-debtor defendant for re-delivery of the property under Section 144, Civil Procedure Code . That petition was dismissed by the trial Court and on appeal, it was ordered. This appeal is against the order directing re-delivery.

2. The facts that are relevant for the disposal of this appeal may be stated.

3. The suit O.S. No. 642 of 1956 was filed on 22nd November, 1956 for recovery of possession with arrears of rent. On 26th June, 1958, the suit was decreed fixing the arrears of rent at Rs. 45.10 As. and future rent at the rate of Rs. 70 per annum, which was modified on appeal fixing the future rent at Rs. 42. In other respects, the decree of the trial Court was confirmed. In purusance of the decree, the decree-holders obtained an order of delivery on 27th September, 1958 and delivery was in fact effected on 3rd October, 1958. On 17th October, 1958, the judgment-debtor filed an application E.A. No. 1980 of 1958 for re-delivery claiming benefit under Act VIII of 1950. Ten days later, i.e., on 27th October, 1958, he deposited Rs. 28 as arrears of rent. The re-delivery application was dismissed on 3rd March, 1959 and the appeal A.S. No. 246 of 1959 filed by the defendant was allowed and re-delivery was ordered. Against the judgment, the appellants filed C.M.S.A. No. 10 of 1960 before the High Court. Pending disposal of the appeal, the respondent-defendant filed E. P. No. 835 of 1959 for re-delivery under Section 144, Civil Procedure Code, out of which the present appeal arises. This Court allowed C.M. S.A. No. 10 of 1960 and remanded E.A. No. 1980 of 1958 which was filed by the respondent-defendant for fresh disposal. After remand, in the first Court, the respondent-defendant did not press E.A. No. 1980 of 1958 and it was dismissed. E.P.No. 835 of 1959 was heard by the District Munsif. He held that the defendant is not entitled to re-delivery since he was in arrears on the date of delivery of possession. An appeal, C.M.A. No. 88 of 1965 was preferred by the defendant and the Appellate Court remanded, E.A. No. 835 of 1959 to the first Court for fresh disposal according to law on 26th April, 1966. The decree-holders preferred C.M.A. No. 74 of 1967 to the High Court against the order of remand made by the first appellate Court . The order of remand was set aside by this Court on 28th January, 1967 and the appellate Court was directed to dispose of the appeal according to law. The appeal was numbered as C.M.A. No. 1 of 1970, and the Lower Appellate Court allowed that appeal and directed re-delivery of possession. Against the order in C.M. A. No. 1 of 1970, the decree-holders have preferred this appeal.

4. The question that arises for consideration is whether the order of delivery in E.P.No. 613 of 1958, was properly made, If the order of delivery was properly made then the defendant would not be entitled to re-delivery. The answer to the present petition E.P. No. 835 of 1959 praying for re-delivery of possession will depend upon the fact whether the delivery effected in favour of the decree-holders is proper or not.

5. The ground on which the validity of delivery of possession is challenged is Section 4 (a) of the Holdings (Stay of Execution Proceedings) Act, (VIII of 1950) (Travancore-Cochin). Section 4 (a) is as follows:

Notwithstanding any law to the contrary, proceedings in execution of a decree in a suit for recovery of possession of a holding shall, so far as they relate to the delivery of possession of the holding, be stayed for a period of twenty three years and six months from the date of commencement of this Act:

Provided that nothing contained in this section shall preclude the Court....

(a) from ordering the delivery of possession of the holding to the decree-holder if the Court is satisfied either that the lessee has committed intentional and wilful acts of waste or that he has failed to pay the rent of the holding which has accrued due after the commencement of this Act, or..

The stay of execution proceedings to be granted under Section 4 is subject to the proviso that the Court shall not be precluded from ordering delivery of possession of the holding to the decree-holder if the Court is satisfied either that the lessee has committed intentional and wilful acts of waste or that he has failed to pay the rent of the holding which has accrued due after the commencement of the Act.

6. The two grounds on which the Court could order delivery of possession to the decree-holder in spite of the main provision in Section 4 staying the execution of the decree for recovery of possession are : (1) that the lessee has committed intentional or wilful acts of waste; or (2) that he has failed to pay the rent of the holding which has accrued due after the commencement of the Act.

7. In this case, there is no allegation that the lessee has committed intentional or wilful acts of waste. The decree-holders' complaint was that the defendant had failed to pay the rent of the holding which had accrued due after the commencement of the Act. It may be noted that the state of mind required in the case of commission of waste, namely, intentional or wilful acts of waste is not found in the clause relating to failure to pay rent. On a construction of the wording of the proviso, the Court would be justified in ordering delivery of possession if the defendant had failed to pay the rent of the holding which had accrued due after the commencement of the Act. That it is not necessary for the decree-holder to prove that the default in payment of rent is intentional or wilful has been held by this Court in Krishnamuthu and Anr. v. Nainar Pillai A.A.A.O. No. 125 of 1969 dated 9th July, 1971.

8. The Supreme Court in Civil Appeal Nos. 469 to 474 of 1965 in considering the contention that the proviso to Section 4 only gives a power to the Execution Court to deliver possession and does not contain any mandate that, if there is any failure to pay arrears of pattom, the Execution Court must direct delivery of possession, held that once the bar for execution of the decree by delivery of possession enforced by the principal clause of Section 4 of the Travancore Act VIII of 1950 was removed because of the applicability of the proviso, the Execution Court had the duty to give full effect to the decree, the execution of which was sought from it by the respondent and that the decree gives an absolute right to the respondent to dispossess the appellant on failure to pay the future pattom and once the appellant committed a default, the respondent was entitled to dispossess him and there was no reason why the Court could refuse to order delivery of possession.

9. If the construction put on the proviso that the decree-holder is entitled to possession when the defendant failed to pay the rent of the holding which had accrued due, is followed, the order of delivery is correct as there were arrears of rent.

10. In this case, it was submitted that Whatever may be the position of law regarding the right of the decree-holder to get an order of dispossession under Section 4, the direction given by this Court while remanding the matter to the appellate Court will have to be strictly followed. In remanding the appeal to the appellate Court, this Court in A.A.A.O. No. 100 1960 observed that the appellate Court should have remanded the Execution Application to the learned District Munsif. After extracting portions of the judgment in Sanku Krishnan v. Hari Prabhu A.I.R. 1953 Trav. Co. 333, the High Court held that the principle laid down in the decision had not been followed either by the learned District Munsif or by the learned Subordinate Judge. In remanding the matter, the High Court directed the appellate Court that in considering the matter, the Court .will use its discretion. The principle laid down by the decision, extracted by the learned Judge may be extracted:.The wording of the proviso and the use of the word 'satisfied' go to show that some amount of judicial discretion is given to the Court in the matter of ordering delivery of possession of a holding. There may be cases in which the lessee was prevented by justifiable cause from paying rent on the due date, or there may be bona fide dispute between the parties relating to the amount of rent to be deposited. In such cases the Court may exercise its discretion in a judicial manner and refuse delivery of possession of the holding.

11. According to the decision cited by the High Court and the directions in the order of remand, the Courts were to consider whether the defendant was prevented by justifiable cause from paying rent on the due date or whether there was a bona fide dispute between the parties relating to the amount of rent to be deposited. Though this may not be the correct position of law, so far as the parties are concerned, they are bound by the order of remand. The order of remand would also include the directions in the order of remand.

12. In the decision in Ethiraja Mudali v. Muthu Reddi : AIR1961Mad410 , a Bench of this Court held that the directions given in the order dismissing an appeal against the order of remand is final and cannot be re-agitated in this Court. It was contended before the Bench that after the directions given by this Court in the order of remind, the High Court had held that under Madras Act IV of 1938, it is open to a judgment-debtor, against whom a decree remains unsatisfied, to apply to the Court to scale down the decree debt, even though he had not taken the plea at an earlier stage of the case. It observed that in the order of remand, the learned Judge after examining the arguments before him gave directions that the debt should be scaled down on a particular basis. The Bench held that wait they were hearing was not an appeal against the order of the Judge who reminded the matter and that the decision and the directions which the Judge give in connection thereunder formed an integral whole and they have become final.

13. The same view was expressed by Aiagiriswami, J., in the decision in K, Mudaliar v. K. Pillai : AIR1970Mad328 . The learned Judge held that when a case comes back to the High Court after disposal by the lower appellate Court after remand, the High Court cannot take into consideration a later decision of the Supreme Court and go back on its own earlier order of remand passed by it on a view that was dissented from by the Supreme Court in a different case.

14. The decisions cited above clearly lay down that whatever may be the position of law, the directions given by the learned Judge in the order of remand will have to be followed.

15. The question, therefore, is whether in this case, the defendant was prevented by justifiable cause from paying rent or was there any bona fide dispute between the parties relating to the amount to be deposited. The plea that the defendant was prevented by justifiable cause from paying the rent on the due date was not pleaded and, therefore, need not be considered. The only question that has to be decided is whether there was a bona fide dispute between the parties relating to the amount to be deposited. On the date when the delivery was ordered i.e., on 3rd October, 1958 the defendant was admittedly in arrears of rent. But the defend ant submitted that he had no notice, and the decree-holders had executed the decree within two years. In filing the application for delivery on 17th October, 1958, the defendant stated that he was in arrears in a sum of Rs. 28, and that he was paying it along with the application. Though the application was nude on 17th October, 1958, the sum of Rs. 28, being the arrears was deposited only on 27th October, 1958. On his own showing, therefore, on the date when delivery was effected, he was in arrears of rent and there is no dispute about that fact. The defendant, therefore, cannot bring his case under the second clause, namely, that there existed a bona fide dispute between the parties. In the result, the order of delivery effected in favour of the appellants is in accordance with the law and cannot be questioned. The application, E.P. No. 835 of 1959 for re-delivery of possession by the defendant has to be dismissed.

16. This appeal is allowed. In the circumstances, there will be no order as to costs. No leave.


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