Kolangarakandi Moozhipurath Gopalan and Others vs Maruthiyott Veettil Sankaran Nair and Another

The appellants sued to recover a sum of Rs. 128-7-0 being the arrears of rent for the Malabar years corresponding to 1939 to 1942 due under

a registered marupat or lease dated 19th May, 1919. The plaintiffs had filed a previous suit, O.S. No. 609 of 1931, for possession and arrears of

rent on the basis of the same marupat and got a decree on 19th December, 1932, for possession with arrears of rent and future rent for three years

on payment of the value of improvements. There was an appeal by the tenant and in appeal the value of the improvements was enhanced, but the

decree was otherwise confirmed on 28th October, 1935. No steps appear to have been taken at any time to execute this decree. On 10th

September, 1939, after Madras Act IV of 1938 had come into force, the tenants made a deposit of the arrears of rent for the Malabar year

corresponding to fasli 1346. There must also have been a similar deposit in respect of the rent of fasli 1347 on some date before 30th September,

1938; for it is common ground that the earlier arrears of rent under the decree have been cancelled by the application of Section 15 of Madras Act

IV of 1938. But no papers have been exhibited regarding the deposit in respect of fasli 1347. Whether because of difficulties under the law of

limitation, or because of their inability to pay for the improvements, the appellants instead of seeking to enforce their previous decree for

possession, filed the present suit in which they claimed the right to recover the arrears of rent of the years corresponding to 1939 to 1942 by the

sale of the tenant''s rights. It was contended for the tenants that the decree in the former suit was barred by limitation, that if it was not barred a

separate suit for rent would not lie by reason of Section 47 of the CPC and the provisions of Section 6 of the Malabar Compensation for Tenants

Improvements Act, and that the lease sued on no longer subsisted having been merged in the prior decree. The trial Court held that the earlier

decree was barred by limitation, that the lease sued on did not subsist by reason of that decree and that the suit was barred by the application of

Section 47 of the Code of Civil Procedure. The lower appellate Court, without going into the question of limitation, dismissed the suit on the

ground that u/s 6(4) of the Malabar Compensation for Tenants Improvements Act, the right of the landlord to rent for the years subsequent to the

decree has to be determined as a matter arising in execution and cannot form the subject of a separate suit.

In appeal it is contended that Section 47 of the CPC has no application, that the conduct of the respondents in taking advantage of Section 15

of Act IV of 1938 amounts to an admission of the subsistence of the tenancy and that the fact that the previous decree had become unexecutable

does not deprive the landlord of his right to file a separate suit for future rents. Reference is also made to the decision of the Privy Council in

Raghunath Singh v. Hansraj Kunwar (1934) 67 M.L.J. 813 : L.R. 61 IndAp 362 : ILR 56 All 561 , wherein the right to file a second suit for the

redemption of a mortgage when the first decree did not foreclose the right of redemption was recognised.

The relevant provisions of the Malabar Compensation for Tenants Improvements Act are Sections 5 and 6. Section 5 gives the tenant a right on

ejectment to compensation for improvements and provides that every tenant to whom compensation is so due shall, notwithstanding the

determination of the tenancy, be entitled to remain in possession until ejectment in execution of a decree or order of Court and the tenant so

continuing in possession shall during such continuance hold as a tenant subject to the terms of his lease. Section 6(1) provides that in a suit for

ejectment when the defendant establishes a claim for compensation for improvements, the amount thereof shall be ascertained and the decree shall

provide that the defendant shall put the plaintiff in possession of the land with the improvements thereon on payment by the plaintiff into Court of

the amount found due for compensation. Sub-section (2) provides for the adjustment of rent due by the defendant to the plaintiff against the

amount found due from the plaintiff to the defendant by way of compensation for improvements. Sub-section (3) provides for what is to happen

when there is a delay on the part of the plaintiff in paying compensation for improvements. In such circumstances there is to be a re-valuation and a

further adjustment of subsequent rent, etc., against the value of improvements and the decree has to be varied in accordance with the order of the

executing Court. Subsection (4) provides that every matter arising under Sub-section (3) shall be deemed to be a question relating to the execution

of a decree within the meaning of Section 244 of the CPC (now corresponding to Section 47 of the Code of Civil Procedure). Reading all these

provisions together, it is clear that when the landlord has obtained a decree for the eviction of the tenant subject to the payment of compensation

for improvements, a statutory tenancy is created for the period during which the decree may be pending execution. During this statutory tenancy,

the relations between the parties are governed by the terms of the lease sued on. If the landlord does not immediately pay the value of

improvements as determined at the time of the decree, the tenant acquires a right to re valuation of the improvements and the payment of any

excess and the landlord obtains the right to set off against these improvements any future rent. But any question Relating to the increase of

improvements and the amount of future rent to be set off against these improvements is to be determined by the executing Court as a matter arising

in execution. Prima facie, therefore, any attempt by the landlord to recover the rent separately for the subsequent periods ignoring his previous

decree would be barred u/s 47 of the Code of Civil Procedure. So much has recently been held by Horwill, J., in Sulian Abdur Rahman Ali Raja

Avergal v. Permi and Ors. S.A. No. 1301 of 1943 with which decision we are in agreement. It follows, therefore, that the lower Courts were right

in holding that the present suit for rent is barred u/s 47 of the Code of Civil Procedure. We may add that in our opinion the decision in Raghunath

Sringh''s case1 has no application having regard to the provisions of the special Act.

It has however been suggested in the course of arguments that this suit might be treated as an application u/s 47 in execution of the previous

decree. There are difficulties in the way of such a procedure. Firstly, the plaintiffs have not asked for the adjustment of the rents now clamed

against the previous decree for improvements; nor do they seek to work out their rights by the process of eviction. What they are trying to do is to

bring the tenant''s rights to sale in execution of a decree for subsequent rent. Assuming that permission might in a proper case be given for the re-

casting of the pleadings so as to transform the suit into an application for the adjustment of the arrears now claimed against the previous decree for

improvements, the appellants would be confronted with serious difficulties of limitation, It has been suggested before us that the decree in the

former suit might be regarded as merely declaratory in its effect until the adjustment of rent against the value of improvements has been made and

the balance has been paid by the plaintiffs. That is to say, the suggestion is that the plaintiffs could work out their rights under the decree at any time

by depositing the value of improvements and limitation would not begin to run until by such deposit the decree had become in the full sense of the

word executable. This argument which is based on the reasoning of the Privy Council in Rameshwar Sirigh v. Homeshwar Singh (1921) 40 M.L.J.

1 : L.R. 48 IndAp 17 seems to overlook the fact that the decree in the present case is executable on the very date on which it was passed. There

was nothing to prevent the plaintiffs from paying into Court the balance due from them by way of improvements and getting possession immediately

after the decree was passed. (Vide Ramappayya v. Charda Bhatta (1910) 7 I.C. 568. It would appear, therefore, that limitation would begin to

run against the plaintiffs from the date of the passing of the decree. In view of the doubt on the question whether the previous decree was, on the

date when the present suit was filed, capable of being executed and in view of the fact that the appellants in the present suit seem deliberately to

have framed their plaint in order to avoid questions of limitation with reference to the previous decree, we do not think that this is a proper case for

treating the plaint in the suit as an application for the execution of the previous decree. We are therefore in agreement with the decision of the lower

appellate Court that the present suit is barred by the provisions of Section 47 of the CPC read with Section 6(4) of the Malabar Compensation for

Tenants Improvements Act, and we dismiss the appeal with costs.