Ananda and another vs Srimathi Ananteshwar Temple Manjeswar

K. Sadasivan, J.—The revision petitioners are the defendants in S.C. 2/60 on the file of the Subordinate Judge of Kasaragod. That suit was for recovery of arrears of rent due from the property for the year 1958-59. Rent was due at the rate of 87 muras of paddy and Rs. 10/-. At that rate the suit was decreed on 29-7-1960. Execution was taken out by the decree-holder in R.E.P. 117/60 and since attachment and sale were prayed for, the decree was transferred to the original side of the court on 2-12-1960. Various objections were raised by the judgment-debtor to the execution and they were all over-ruled and the properties were sold on 8-1-1962. The properties were sold for Rs. 305/- the balance of arrears due from the defendants. At this stage, the Kerala Ryotwari Tenants Protection Ordinance, 1 of 1962 (Shortly stated the Ordinance) (which was eventually superseded by the Kerala Ryotwari Tenants and Kudikidappukars Protection Act, 1962) came into effect. Protection was sought by the petitioners under S. 3 of the Ordinance which provided that in any suit for recovery from a tenant, of rent accrued due subsequent to the 11th day of April, 1957, where the rent payable is more than the rent calculated at the rate specified in the schedule for the appropriate class of land, the court may grant an interim decree for an amount not in excess of the amount so calculated and shall stay the proceedings in respect of the claim for the balance amount. The learned Subordinate judge has held that this provision is not applicable to the present case and it can render no protection to the petitioners since the properties have been sold already in execution of the decree and the matter had thus ended. The sale was, as already stated, on 8-1-1962 and the ordinance came only on 14-1-1962. He has accordingly dismissed the petition. I do not find my way to interfere with the order. Neither the Ordinance nor the Act that followed it provides for setting aside a sale under any circumstance. For getting the sale set aside they ought to have proceeded under O. 21, R.89, or 90C.P. C. But the defendants have not taken any steps under either of the above Rules of Order 21. If the petition is one under R.89 it has to be accompanied by the deposit specified therein and if the petition is under R. 90, material irregularity or fraud in publishing or conducting the sale have to be made out. The defendants have no case that the sale in the present instance is vitiated by any of those factors. The contention of the defendant is that having come before the confirmation of the sale they have a right to get the decree reopened under S. 3 of the Ordinance. I do not think the position contended for is correct. In the first place, as already indicated, neither the Ordinance nor the Act that followed it, provides for setting aside the sale. Normally, the execution ends with the sale of the property. Confirmation is something done on the ministerial side of the court and, therefore, no particular benefit accrues to the defendants from the fact that the petition under the ordinance was moved by him before the confirmation of the sale. So long as there is no provision in the Ordinance or the Act for setting aside the sale, no relief can be granted to the petitioners. If protection to debtors whose properties had been sold in execution but the sale not confirmed, was also in the contemplation of the Government or the legislature, appropriate provisions would have been made in the Ordinance and in the Act to that effect, as we see in Act 31/58. When such a protection is not extended, it has to be presumed that such class of debtors have been placed beyond the pale of the Act.

There is also another aspect to be considered in this connection. In so far as the decree had been transferred to the original side of the court for execution by attachment and sale, orders made by the court thereafter would be orders passed under S-47 C.P.C. and hence appealable. So the defendants ought to have filed a regular appeal rather than challenging it in revision as has been done now. In Ponnappa Reddi v Thiruvengada Pillai (901. C. 509) the Madras High Court held:-

When a decree of the Madras Small Cause Courts is transferred to a mofussil District Munsiff''s Court for execution, not or its small cause side, but on its original side, against the immovable property of the judgment-debtor, an order made by the latter court in execution is appealable under S. 47 of the C. P. C.

A District Munsiff''s Court in executing a decree of the Madras Small Cause Court in respect of immovable properly exercise s its powers not as a small cause court, but as a court of original jurisdiction, and the rules applicable to proceedings of the Small cause decree so transferred to the "original side of the court.

The position is well settled and is covered by other rulings also. The Calcutta High Court, for instance, held in Abinath Chandra Nag. v. Bibutti Bhuman Bose (44 C.W.N. 587). Where a decree of a small cause court is transferred to the court of a subordinate judge, such judge also having small cause court powers, and the application is for execution to proceed against the immovable property of the judgment-debtor, the subordinate Judge dealing with it does not act in his jurisdiction as a small cause court but in his ordinary jurisdiction.

Thus in the present case when the small cause decree was transferred to the original side of the court for execution it partook the character of a decree passed by the court in its original jurisdiction and as such any order passed by it in such execution will have the force of a decree passed by it liable to appeal under S. 47 C.P.C. In short the position boils itself to this:-

(i) Since there is no provision in the Ordinance or the Act to set aside a sale that has already taken place, an application under the Ordinance or the Act is not maintainable; (ii) The proper course open

to the defendants was to get the sale set aside under R 89 or 90 of 0.21; but that was not done; and

(iii) The decree having been transferred to the original side of the court, any order passed thereafter by the court would have the force of a decree and hence appealable under S. 47 of the C. P. C. but no such remedy was resorted to by the defendants.

This revision petition is, in the circumstances, unsustainable and it is dismissed: but without costs.