Eapen Mathen vs Narayana Iyer Krishna Iyer

Gangadhara Menon, J.—Defendant 3 is the Appellant. The matter arises in execution. When the decree-holder sought to execute the decree, objection thereto was taken by Defendant 3 in two, civil miscellaneous petitions filed by him, C.M.P. No. 3994 dated 3-7-1951 and C.M.P. 5050 dated 4-8-1951 In C.M.P. No. 3994 of 1951, Defendant 3 contended that he is in possession as lessee of the property and, therefore, the delivery of the property has to be stayed as provided for in Act 8 of 1950. This objection was overruled by the learned Judge on the ground that Act 8 of 1950 does not apply to the present case.

The suit properties originally belonged to the tarwad of Defendants 1 and 2. They mortgaged the properties to one Ananthasiva Iyer. The Plaintiff took an assignment of the mortgage and leased the mortgaged properties to Defendants 1 and 2. On the basis of the lease, Plaintiff brought the suit for recovery of possession of the leasehold properties with arrears of past and future rent. In execution of a decree obtained by Defendant 3 against Defendants 1 and 2 and Ors. he brought to sale the equity of redemption of the properties and also the leasehold right of Defendants 1 and 2, purchased them in court auction and obtained delivery. Defendant 3 who was thus in possession of the properties resisted the Plaintiff''s suit on various grounds. His contentions were repelled and the Plaintiff was given a decree for recovery of possession of the properties with past and future rent as prayed for in the plaint. It is this decree that is sought to be executed now. The leasehold interest of Defendants 1 and 2 has devolved on Defendant 3 by virtue of his court purchase and delivery pursuant thereto. There can, therefore, be no doubt that he is in possession of the properties on the basis of the lease executed by the Plaintiff-mortgagee in favour of his mortgagors.

It is contended that the lease executed by the Plaintiff in favour of his mortgagors on the basis of which the suit was brought for recovery of possession is not a holding as defined in the Act. We are unable to agree with this contention. We are clear that the suit is one for recovery of possession of a holding as defined in Act 8 of 1950. This question is concluded by the Full Bench decision reported in - ''Sanku Krishnan v. Govinda Prabhu AIR 1952 TC 333 (P.B.) (A). The fact that it was the mortgagee that executed the lease will not make any difference as long as the mortgage subsists and the suit is by the mortgagee for recovery of possession of the properties leased by him. The matter may be different when the mortgagor brings the action for redemption of the properties against the mortgagees with the lessees of the mortgagees on the party-array. That will be a suit for redemption of the mortgage and not one for recovery of a holding as defined in the Act. But when the mortgagee sues for recovery of the property on the basis of a lease executed by him the property sought to be recovered to such an action is a holding as defined in the Act. Therefore we are of the view that the contention, of Defendant 3 that recovery of the properties has to be stayed is sustainable. We uphold that contention and direct that the recovery of possession of the properties will be stayed as enjoined under Act 8 of 1950.

The next question relates to value of paddy. It is contended for the Appellant that the paddy has to be valued at 12 Chs. till the date of the High Court decree. The trial Court''s decree in the case directed that the value of paddy will be calculated at the rate of 12 Chs. per para, till the date of the decree and thereafter at the nirak rate. This decree was appealed against and the appellate Court confirmed the trial Court''s decree. The question is whether the 12 Chs. rate mentioned in the decree will apply only to the arrears due till the date of the trial Court''s decree or has to apply to arrears till the date of the appellate Court''s decree. Order 20, Rule 12, CPC provides that where a suit is for recovery of possession of Immovable property and for rent or mesne profits the Court may award future mesne profits till delivery of possession of property or the expiration of three years from the date of the decree whichever event occurs first. It is admitted that for calculation of the 3 years period from the date of the decree it is the date of the appellate Court''s decree that has to be taken into account. This is on the footing that it is the appellate Court''s decree that has to be taken as the decree in the case. If that is so, we do not see how for the purpose of valuation of paddy till the date of the decree, the trial Court''s decree has to be taken as the decree in the case. The decree in the case only states that the arrears of paddy till the date of the decree will be valued at 12 Chs. per para. When this decree has been confirmed by the High Court, we think that it is the High Court''s decree that governs the rights of the parties and that the paddy has to be valued at 12 Chs. per para., till the date of the decree. The decision reported in - ''1948 TLR 244 (B)'', has no application to the facts of this case. Therefore on a construction of the decree in the case we are of the view that the future rent awarded till the date of the High Court decree has to be valued at the rate of 12 Chs. per para, and that the nirak rate will apply only for the rent due after the date of the High Court''s decree.

Thus we uphold both the contentions raised by the Appellant and the appeal is allowed with costs in both courts.