Subramonia Iyer vs Official Receiver, Quilon

Koshi C. J.

This is a decree-holder''s appeal against an order the execution court made under Act I of 1957 staying the execution of the decree for recovery of arrears of rent. The decree is one passed in 1103 in a suit brought in 1102 on the basis of a lease-back and an usufructuary mortgage granted to his mortgagors. The mortgage was in the sum of Rs. 75,000/- and the mortgagors were the members of a Muslim family conducting a fairly large scale trade in Quilon Town. At or about the time of the institution of the suit the mortgagors were adjudged insolvents and it is the official receiver in whom their estate had vested that sought the stay of execution to recover arrears of rent. Pending the suit or soon after the decree he had surrendered possession of the mortgage properties to the mortgagee and the present execution therefore is for arrears of rent that had accrued prior to such delivery of possession. Going by the language of the definition of the term ''Holding'' in the Kerala Stay of Eviction Proceedings Act, 1957 (Act I of 1957) a lease-back arrangement might perhaps come within its scope. That is what Eapen v Narayanan AIR 1953 Travancore-Cochin 268 - held with respect to a similar definition occurring in the Travancore-Cochin Holdings (Stay of Execution Proceedings) Act, 1950 (Act VIII of 1950) held, but comparing the preamble of the present Act with the preamble to Act, VIII of 1950 we are afraid that that decision cannot be applied to the present case.

The preamble to Act VIII of 1950 reads:-"Where it is deemed expedient to stay proceedings in execution of certain decrees in civil courts for eviction from holdings in Travancore;....", but the present Act (Act I of 1957) opens with the words "An Act to stay eviction of tenants, Kudikidappukars and certain other classes of persons cultivating land" audits preamble reads : "Whereas it is necessary to take immediate action to provide for the temporary protection of tenants, Kudikidappukars and persons cultivating land on varom, Sambalapattom or other similar arrangements pending enactment of a comprehensive legislation relating to tenancy and agrarian reforms". In view of the opening words of the later Act and its preamble we cannot for a moment hold that the legislature intended to apply the provisions of the Act to a transaction of the nature before us now, namely, where the decree-holder in the course of his moneylending business lent money to business people who executed an usufructuary mortgage in favour of the lender and the latter gives the property back on lease to the mortgagors. Any legislation relating to tenancy and agrarian reforms cannot in our opinion affect such transactions and it will be therefore going beyond the legislative intent to extend the beneficient provisions in the Act to such transactions. The estate of the debtors had become insolvent and the delay in the matter of disposal of the insolvency proceedings by the lower court had been a matter for adverse comment by the Supreme Court when an appeal against the decision of the Travancore-Cochin High Court annulling the mortgage in question went up before the Supreme Court. We do not therefore think that in the name of Act I of 1957 the present execution should be stayed.

The appeal is in the result allowed and the lower court''s order is set aside. In the circumstances of the case we, however, make no order for costs.

Order accordingly.