P.M. Chitrabhanu Namboodiripad vs A.M. Karunakaran Nair

V.R. Krishna Iyer, J.—These two revision petitions have been heard together, being between the same parties, raising the same point and subjected to common argument. The point so raised is as to whether the stay of execution ordered by the executing Court u/s 5 of Act 9 of 1967 (the stay was actually ordered under the corresponding provisions of the Ordinance which preceded the Act) is liable to be vacated, since, according to the auction-purchaser, the holding had already been sold, albeit not confirmed, and the condition laid down u/s 7 of deposit of the decree amount had not been complied with. The learned Munsiff dismissed the petition over-ruling the contention of the auction-purchaser. I am disposed to agree with him. Even though the line of argument which has appealed to me is slightly different. Act 9 of 1967 contains three provisions for stay in cases of decrees for arrears of rent. Section 5 directs that all proceedings in execution of decrees (for recovery of arrears of rent in respect of a holding etc.) pending at the commencement of the Act shall be stayed. Section 6 provides that where any holding has been sold in execution of any decree for arrears of rent and the tenant dispossessed of the holding after 1-4-1964 but before the commencement of Ordinance 4 of 1967 (the predecessor of Act 9 of 1967) such tenant shall be entitled to restoration of possession of the holding on certain conditions regarding deposit of the purchase money. Section 7 deals with a case where a holding has been sold before Ordinance 4 of 1967 in execution of a decree for arrears of rent but the tenant has not been dispossessed and such tenant is given a right to get the sale set aside by depositing the decree amount with interest. Thus, whenever a decree for arrears of rent is put in execution, Section 5, which is comprehensive in character, commands the Court to stay execution proceedings. If the proceeding is in-execution and the decree under execution is one for recovery of arrears of rent, Section 5 stands attracted. It is immaterial whether Section 6 or 7 will also apply. In a loose sense one might imagine that Section 5 deals with a pre-sale stage, Section 7 with a post-sale but pre-delivery-of-possession stage and Section 6 with a post-delivery-of-possession stage. On a closer analysis it will be clear that while Section 7 applies only where possession has not been taken by the purchaser, it deals with a totally different relief from the one granted u/s 5. Similarly, Section 6, although it deals with a tenant whose holding has been sold and he has been dispossessed, the relief granted is different from what is accorded u/s 5. u/s 7, the real relief claimed is the setting aside or the cancellation of the sale. u/s 6 the relief granted is a setting aside of the sale plus restoration of possession. A tenant content to apply u/s 5 will not get the benefit of the sale being set aside, but will merely get the situation freezed where it is, that is to say, the execution proceeding at the stage at which it is will be stayed. The sale which has taken place will not be upset by such stay u/s 5. It is open to the tenant to take advantage of Section 7 or Section 6, as the case may be, where a sale has already taken place. But it is also open to him not to take advantage of those provisions but merely to get the execution proceedings stopped, gazing at the stars for future a legislation which might drop some anna. But if it does not, the sale will remain, because he has not chosen to take advantage of Sections 6 and 7. If I may put it differently, Section 5 halts the decree-holder in his march, while Sections 6 and 7 drive him and the auction purchaser back. If the tenant is content with the lesser relief, the decree-holder cannot pretend to be aggrieved.

In this case, the decree being one for arrears of rent and the execution proceedings still pending, stay has been rightly granted u/s 5. No ground has been made out to vacate that stay. In fact, if the decree-holder was aggrieved by the stay ordered u/s 6 he should have challenged that order and not challenged the tenant for a shadow fight over cancellation of a sale which the tenant never demanded. The revision petitions are dismissed, but there will be no order as to costs. The learned Munsiff has discussed the question as to when sale takes place in execution of a decree and thinks that the sale becomes complete only when there is confirmation thereof. The statute merely refers to the holding having been sold. When is the holding sold? The answer is furnished by the ruling reported in Janak Raj Vs. Gurdial Singh and Another, where their Lordships have clearly pointed out as follows:

Section 65 of the CPC lays down that where immovable property is sold in execution of a decree and such Sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when it is sold and not from the time when the sale becomes absolute. The result is that the purchaser''s title relates back to the date of sale and not the confirmation of sale.

The property is sold on the date when it is sold and not on the date when it is confirmed and made absolute. But, as pointed out earlier, we are not concerned with that question at all here, because the stay of execution in this case has been granted u/s 5 and not u/s 7 of the Act.