Chekku and Others vs Mukthiar Managers of Poomulli Mana Krishnan Nambudripad and Another

Panchapagesa Sastri, J.—These two appeals raise one common point and it is sufficient to deal with one of them. I will take A.A.A.O. No.

15 of 1947.

This is an appeal by the tenant who is the judgment-debtor in O.S. No. 462 of 1943. The landlord obtained a decree for the sale of his holding

for arrears of rent due up to the year 1118 of the Mayalaylam, era. E.P. No. 4 of 1946 was filed by the landlord in execution of the said decree.

Subsequent to this suit there was another suit instituted by the landlord against the same tenant for recovery of arrear for the years 1119, 1120 and

1121, of the Malayalam era. That suit O.S. No. 287 of 1946 also was for sale of the holding. The tenant made a deposit of two years'' rent for the

years preceding the commencement of the Madras Act XVII of 1946, in O.S. No. 287 of 1946. The deposit was made on 4th December, 1946,

well within two months'' period from the commencement of the Act. The Act came into force on 8th October, 1946. On 6th December, 1946, he

filed E.A. No. 695 of 1946 in E.P. No. 4 of 1946 praying the Court to record the deposit made in respect of the holding in O.S. No. 287 of 1946

and asked also for stay of execution of the decree in E.P. No. 4 of 1946. The lower Court by its order, dated nth December, 1946, recorded the

fact of deposit of the two years'' rent in the later suit but took care to add that the sufficiency and validity of the deposit were left open to be

considered in in further proceedings. On the 17th January, 1947, the tenant filed a statement E.P. No. 4 of 1946 that the deposit made by him in

the pending suit should be treated as a deposit in the execution petition No. 4 of 1946 and that the execution petition should be stayed. He also

filed an application for extension of time under Section. 4, Clause (4) of the Act. The landlord opposed the application for stay of E.P. No. 4 of

1946 and contended that the deposit made in the pending suit can only be sufficient for purpose of staying that alone and that the tenant should

make another deposit of two years'' rent if he wanted E.P. No. 4 of 1946 to be stayed though the holding was one and the same, both in the suit

and in the execution proceedings. He pointed out that there was no second deposit made as required by the Act and that the application for

extension of time was not really sustainable u/s 4, Clause (4). Both the lower Courts have agreed with the contention of the landlord and state that

they find nothing in the Act to relieve the tenant from his obligation to make separate deposits both in the suit and in the execution proceeding if he

wants to get stay of both. The tenant has appealed against these orders of the lower Courts.

In appeal it is contended for him by Mr. Swaminatha Aiyar that the deposit is required only u/s 4, Clause (3) and that on a proper construction

thereof a single deposit of an amount equivalent to rent of two years immediately preceding the commencement of the Act would be sufficient to

enable him to ask for stay of both the pending suit and the execution proceeding. He submits that it could not have been the intention of the

Legislature that there should be several deposits of two years'' rent for the specific period being made in each of the proceedings sought to be

stayed. The object of the Act according to him is to prevent a sale of the particular holding of the tenant pending further legislation by the

Government possibly with a view to confer greater benefits on the tenants in possession and it would seem to be more in consonance with the

policy of the Act if the two years'' rental on the holding for the period immediately preceding the Act was secured to the landlord by a deposit. It is

conceded now before me that so far as the suit is concerned that the necessity for the deposit is only because of the expression ""other proceeding

for the sale of the holding to recover rent"" occurring in Sub-clause (3). With regard to the execution proceedings also, it is only because of those

very words that the deposit is required. In other words as both the proceedings related to claims not for eviction of the tenant but only for bringing

to sale the holding of the tenant for recovery of rent, Sub-clause (3) of Section 4 alone would be applicable. Sub-clause (3) omitting the words

which are really unnecessary for the purposes of this case would read as follows:

In the case of a proceeding for sale of a holding to recover rent, the tenant shall within two months from the date of the commencement of the Act

deposit in the Court for payment to the landlord the amount payable under the decree or order or an amount equivalent to rent for two years

immediately preceding the commencement of this Act, whichever is less.

The question for consideration is whether where there are more than one proceeding for sale of a holding to recover rent, it is necessary for the

tenant to deposit in each proceeding either the amount payable under the decree or order if any or an amount equivalent to the rent for two years

preceding the commencement of the Act whichever is less as the case may be. I am inclined to Construe-clause (3) as requiring only one deposit

of the maximum amount equivalent to rent for two years immediately preceding the commencement of this Act to entitle the tenant to claim that all

proceedings for sale of that holding should be stayed under the Act. A single deposit is sufficient but it must satisfy the requirement of Clause (3) so

far as the amount to be deposited is concerned. If there are two decrees in execution it would be necessary to pay the aggregate of both the

decree amounts or an amount equivalent to rent for two years immediately preceding the commencement of the Act whichever is less. The word

proceeding"" must be construed to include ""proceedings"" as well in the plural and it is unnecessary in my opinion that for a stay of each proceeding

there must be a separate deposit of the amount required under Clause (3). I am fortified in this conclusion by a reference to Clause (5) of Section 4

which indicates that where two proceedings are stayed in respect of the same holding it would be sufficient if there is one deposit of each year''s

subsequent rent. It is not contended before me that even in such a case Clause (5) would require two or more deposits of each year''s rent in each

of the proceedings that may be pending. I therefore hold that the lower Courts were wrong in their view that the deposit which was made in the

pending suit could not be taken into account in allowing the tenant to claim the benefit sought u/s 4. I may add that it was pointed out that the

proceedings in respect of the same holding may perhaps be in different Courts and the Sub-clause (3) does not give any indication as to in what

Court the deposit should be made if really one deposit would be sufficient. It was argued that the intention is that in each of the Courts where a

proceeding was pending there must be a separate deposit of the requisite amount. I do not agree with this contention The deposit may be made in

any of the Courts where a proceeding is pending and the fact of that deposit having been made may be intimated to the other Court where another

proceeding for sale of the holding is going on. It will be the duty of that Court then to stay the proceeding before it u/s 4 where it is satisfied that

deposit of the required amount has been made in the other Court though not before itself. In the circumstances it is unnecessary to deal with the

petitions filed by the tenant for extension of time.

In the result the orders of the lower Court are set aside. These second appeals are allowed with costs throughout and there will be stay of

proceedings in execution both in E.P. No. 4 of 1946 in O.S. No. 462 of 1943 on the file of the Court of the District Munsiff of Ottapalam and also

in E.P. No. 5 of 1946 in O.S. No. 466 of 1946 on the file of the same Court. No leave.