Ahmed Hussain vs Saidani Bi and Others

Balakrishna Ayyar, J.—The petitioner was the defendant in O. S. No. 88 of 1953 on the file of the Sub-Court, Chingleput. The subject-

matter of the litigation was a house. The plaintiffs claimed that they were the owners of the house and that the defendant, had been merely

permitted by Abdul Subban Saheb their predecessor-in-title to occupy the house free of rent. The plaintiffs alleged that after the death of Abdul

Subban Saheb, the defendant, taking advantage of his possession, was setting up title in himself. They, therefore, sued to recover possession of

the property and also for compensation for the wrongful occupation of the premises by the defendant computed at Rs. 30 a month.

The suit was compromised, the defendant undertaking to pay Rs. 500 for costs and Rs. 20 per month, from the date of the decree, as

compensation for the occupation of the house. The defendant did not vacate the premises within the time promised. The decree-holders in

consequence filed an execution petition. The defendant then claimed protection under Madras Act 5 of 1954. The learned Subordinate Judge

overruled his objections and directed that execution should proceed. An appeal has been filed against that order and stay is asked for on the

ground that this is a matter covered by Madras Act 5 of 1954.

The learned counsel for the petitioner urged in the main, three points. The first was that the suit was for a debt and that the circumstance that

possession of the house was also prayed for made no difference since explanation (iii) to Section 3 of the Act, provides as follows:

A suit shall be deemed to be a suit for the recovery of a debt notwithstanding that other reliefs are prayed for in such suit and a decree shall be

deemed to be a decree for payment of money passed in such suit notwithstanding the other reliefs are granted by such a decree; Provided that a

suit for possession of land shall not be deemed to be a suit for recovery of a debt by reason merely of mesne profits being also prayed for in such

suit.

The proviso, it was said does not apply because the suit was for a house and not for land. I do not think that the contention of counsel as to the

scope of explanation (iii) is right, because from the definition of the word ""debt"" appearing in Section 2(b), the following, among others, are

excepted:

(1) Rent or compensation for use and occupation of house property.

In so far as the plaintiffs claimed compensation from the defendant for use and occupation of house property, their claim was not a ""debt"" within

the meaning of the Act. I would draw attention to the fact that the words used in the latter half of Explanation (iii) are ""a decree for payment of

money passed in such a suit"". ""Such a suit"" obviously means the suit referred to in the earlier part of the explanation, viz., for, recovery of a debt.

Therefore, suits for the recovery of rent or compensation for the use of, house property are outside the scope of this explanation.

The second point raised by the counsel for, the petitioner was that the decree in the present case includes a decree for costs and this is a debt,

and, therefore, covered by Madras Act 5 of 1954. I am unable to accept this contention, because in, practically every suit, there is a claim for

costs and, as a general rule, when the plaintiff succeeds, the Court grants him costs. To say that because the plaintiff has succeeded and he has

been awarded costs, the defendant gets the protection of Act 5 of 1954, would be to reduce the entire proceedings to a farce.

The third point raised by the learned counsel for the petitioner was that this is a compromise decree and that, therefore, it must be treated as a

decree for a debt. The Act does not make any distinction between compromise decrees and others, and I can see no warrant for making the

distinction raised by the learned counsel for the petitioner.

In the result, the petition is dismissed with costs.