P. Narayana Pillai vs S. Nagamoney

M. Anantanarayanan, C.J.—The facts in relation to this proceeding have to be very clearly set forth, in the first instance, for an appreciation

of the relatively narrow issue which is involved. In view of the somewhat protracted history of this litigation, we are setting forth only those

outstanding facts which illuminate the sole issue now arising for our determination. O. S. No. 49 of 1957, on the file of the Subordinate Judge of

Nagarcoil, was a suit by the petitioner-appellant for declaring the right of the petitioner-appellant to be in possession of item 1 of the plaint-

schedule. That suit itself came to be instituted in the following manner. Item 1 was sold in execution of a decree O. S. No. 973 of 1113 M. E. and

was purchased by one Sivanandan in Court auction who, in his turn assigned his rights to the defendant-respondent. When the defendant-

respondent attempted to take possession of the property, he was obstructed by the appellant who claimed rights as a tenant put in possession

notwithstanding the Court auction purchase and the assignment of that right. On an application under the processual law, the Court executing the

petition for delivery directed removal of the obstruction. The present appellant filed O. S. No. 49 of 1957 on the file of the Subordinate Judge of

Nagarcoil, under the relevant provisions of Order 21, Civil Procedure Code, for setting aside the claim order. Since the decree in that suit is of

some importance, and is to be found among the typed papers, we shall immediately refer to it.

The decree in that suit states, in explicit terms that the summary order passed in the execution proceeding was to be set aside. This implied that

the claim of the obstruct or was upheld. But the Court also directed, as part of the decree, that the plaintiff had the right to be in possession of item

1, so long as he was not paid the value of the improvements effected, and that his right was to be so declared under the decree. This is the first

stage of the relevant events.

The respondent appealed to this Court from the decree in O.S. No. 49 of 1957, and the appeal was ultimately dealt with by Kailasam, J., in

which by judgment he dismissed the appeal. But, in the meantime, the respondent herein filed an application for appointment of a Receiver to the

property mainly on the ground that the plaintiff (appellant) was committing acts of waste and destroying the property or diminishing the value of the

property. That matter came up before Ramachandra Iyer, J., as he then was, in an interlocutory proceeding and the learned Judge directed the

appointment of a Receiver. It is not in dispute between the parties that, in pursuance of this order, the lower Court appointed the present

respondent as Receiver, and the record explicitly shows that though he might have obtained a symbolical delivery, earlier, he took actual delivery

of the property, from the plaintiff-appellant, in his capacity as Receiver and by virtue of orders of Court. There is an observation in the judgment of

Ramachandra Iyer, J., that the only right of the plaintiff appellant was to obtain a sum of Rs. 1,600 being the value of the improvements and that,

the appellant had ''''no further right to possession of the property."" This observation may not be correct for reasons that we shall set forth later ;

actually, it does not appear that, in that purely interlocutory proceeding, the statutory right, now claimed by the tenant (appellant) to be in

undisturbed and actual possession of the property, notwithstanding the Court auction purchase and other proceedings, was brought to the notice of

the Court.

But, this matter was clearly brought to the notice of Kailasam, J., When he disposed of the appeal. In dismissing the appeal the learned Judge

stated:

The plaintiff will of course be entitled to claim rights, if any, conferred on him by the statute as a tenant in possession.... The order appointing

Receiver pending disposal of the appeal will stand cancelled.

Subsequent to this the plaintiff instituted proceedings for restitution of possession in respect of item 1, claiming statutory rights u/s 4 of the

Holdings (Stay of Execution Proceedings) Act, 1950 and also basing his claim under Sections 144 and 151, Civil Procedure Code. That

application was dismissed by Venkatadri, J., and the Letters Patent Appeal, before us, arises in this connection.

In our view, there is a very broad principle of justice relating to the processual law, upon which an application of this character will have

necessarily to be allowed. As we pointed earlier, it is not as if the respondent obtained physical possession of this property by virtue of any decree

of any Court, declaring his light to possession. Had he done so, the matter would certainly have been different, but, those are not the facts. The

order removing the obstruction suffered by the plaintiff-appellant had been set aside, both in the subsequent suit filed under the processual law and

in the subsequent appeal before Kailasam J. No doubt, the decree in that suit declared the right of the plaintiff-appellant to be in possession until

the value of the improvements was paid. It is certainly possible for learned Counsel for the respondent to contend that, on a fair interpretation of

that decree, the plaintiff cannot claim any further right to be in possession strictly under the decree, after the improvements have bean evaluated and

the value had been paid. But the point now before us is not this. The point now before us is that the respondent was appointed as Receiver by

Court, that the property was placed in custodia legis, and that the respondent, as the record irrefutably, shows obtained possession, viz., physical

possession of the property, from the appellant by virtue of these orders and by virtue of the submission of the appellant to the authoritative

direction of the Court. That implied necessarily that, it ultimately the appeal was dismissed and the Receivership terminated, the plaintiff appellant

will have every light to be resituated ,viz., to receive back that possession which the appellant parted with, in obedience to the authoritative

direction of the Court. This is a very important principle, and, there can be no penalty imposed on a party, arising from an act of obedience to the

authority of the order of the Court. That principle was expressed by Lord Cairns in Rodger v. Comptoir D''Escompte De Paris (1871) L.R. 3

P.C. 465 : 17 E.R. 120, in the following words:

One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors, and when the

expression ''the act of the Court'' is used, it does not mean merely that act of the Primary Courts or of any intermediate Court of appeal, but the act

of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter upto the highest Court which finally disposes of the

case.

Learned Counsel for the appellant has now brought to our attention Section 4 of the Act, earlier referred to, under which, according to her

interpretation, her client is entitled, as a tenant in occupation, to continue in possession even if the value of the improvements be paid, until there is

an actual decree or order for eviction of that tenant obtained by the landholder (judgment-debtor), or any one claiming the right of the Proprietor.

Learned Counsel for the appellant contends that there is no such decree or order in this case. All that has happened is that the obstruction offered

by her client was directed to be removed, that that order was set aside in appeal and that there was a declaration that the tenant was entitled to

remain in possession till the value of the improvements be paid. If, after that, it is the claim of the landholder, or any one claiming under the

landholder, that the tenant is liable to be evicted, the duty of the parson is to take proper steps, under the law, for such eviction. Our order

appointing that party as a receiver, cannot be taken advantage of, to prevent the redelivery of the property, to the person from whom the receiver

took delivery, on any pretext, for that would precisely offend the principle stated by Cairns, L.C. above, viz., an injury to one of the suitors would

be committed indirectly, as a consequence of an interlocutory order of the Court. Hence, we have no hesitation, whatever, in holding that,

whatever else might be the rights inter se between the parties, our receiver must hand over the possession which he obtained from the appellant, by

virtue of our orders, back to the party who parted with that possession and then pursue his remedies at law, whether by way of further execution

of any decree already in existence, or by way of the institution of a fresh suit, as advised. We may add that the learned Judge (Venkatadri, J.)

appears to have given some interpretation that Act VIII of 1950 will not be applicable to the present situation. We are not now here construing

Section 4 of the Act VIII of 1950, and, indeed, the entire text of the Act and the rules is not before us, and we cannot now lay it down how

precisely the procedure to be adopted, either by a landholder or a tenant, in respect of that Act, and what the forum and form of application have

to be.

The Letters Patent Appeal is accordingly allowed to the extent directed above. No order as to costs.