V. K. Krishna Menon v. Ouseph Thoman — 1957 DIGILAW 337 (KER)

Judgment :- 1. The question which arises for decision in this civil miscellaneous appeal is whether the appointment of a receiver in a suit for recovery of arrears of rent made before the enactment of the Kerala Stay of Eviction Proceedings Ordinance, I of 1957, is liable to be cancelled by reason of the mere enactment of the said Ordinance and the subsequent Kerala Stay of Eviction Proceedings Act, I of 1957 2. The facts are as follows: The defendant is in possession of the suit property under a lease deed which provides for payment of rent, not in money, but in cocoanuts, at certain stipulated times, and it is admitted that for arrears of rent due before the Malabar year 1125 a decree has been passed against him in O. S. No. 20 of 1125 of the Anjikaimal District Court and another decree has been passed against him in O. S. No. 184 of 1951 for arrears of rent due for the years 1125 and 1126. On 13-10-1955 A. D., the appellant in this civil miscellaneous appeal filed a third suit against the defendant for balance of arrears of rent due in respect of the Malabar years 1127 to 1130. That suit was first filed in the Anjikaimal District Court as O. S. No. 174 of 1955 and after the establishment of the Subordinate Judge's Court of Ernakulam, it was transferred to the Subordinate Judge's Court and re-numbered as O. S. No. 59 of 1957. The balance of arrears claimed in that suit and interest thereon amounted to Rs. That suit was first filed in the Anjikaimal District Court as O. S. No. 174 of 1955 and after the establishment of the Subordinate Judge's Court of Ernakulam, it was transferred to the Subordinate Judge's Court and re-numbered as O. S. No. 59 of 1957. The balance of arrears claimed in that suit and interest thereon amounted to Rs. 9,389 -12-7.On the date of the institution of the suit itself the plaintiff applied for the appointment of a receiver for the suit property alleging that a very large amount was due to him as per the two earlier decrees and i account of the arrears of rent claimed in the present suit, and the value of the lease-hold interest was less than the arrears of rent due to him and, with a view to defeat and defraud him, the defendant was not attending to the maintenance work in the property and causing deterioration to it and was also taking the whole yield without paying any rent, and that in order to preserve the property and also protect the interests of the plaintiff and enable him to recover the amounts due to him it was essential that a receiver should be appointed. On this application the District Judge passed an order on 14-1-1956 directing the defendant to deposit certain amounts in court and stating that a receiver would be appointed in case of default of such deposit. The defendant made some deposits and then defaulted and so, on 7-6-1956, the District Judge appointed the plaintiff as receiver subject to certain conditions which limited his powers merely to plucking and taking of cocoanuts in the property and directed the defendant to attend to the maintenance work. Some time later, on the plaintiff expressing his unwillingness to continue as receiver, this order was modified and an advocate was appointed as receiver subject to the same conditions. On 19-11-1956 plaintiff again made another application, I.A. No. 894 of 1956, stating that the defendant was not attending to the maintenance work in the property with the intention to cause deterioration to : and consequent loss to him and the property was, therefore, going to rack it and ruin and so the receiver might be empowered to attend to the maintenance work also and the limitations on his powers removed. Although this application was at first opposed by the defendant the parties ultimately effected a compromise in regard to it after the suit was transferred to the court of the Subordinate Judge of Ernakulam and filed a joint statement on 26-2-1957 praying that the plaintiff might be appointed receiver without remuneration and that one-third of the income taken by the receiver might be periodically paid to the defendant and the balance retained by him. Acting on this joint statement, the Subordinate Judge appointed the plaintiff as receiver on 28-2-1957 by an order which reads: "Plaintiff is appointed receiver on the terms stipulated in the petition. Receiver is to execute the kychit etc. in 7 days". Plaintiff - receiver accordingly executed the kychit and took possession of the property on 19 -3 -1957. After this, the Kerala Stay of Eviction Proceedings Ordinance, I of 1957, was passed on 11-4-1957 and in continuation of that Ordinance the Kerala Stay of Eviction Proceedings Act I of 1957, was passed on the 31st May 1957; and after the enactment of the Kerala Stay of Eviction Proceedings Act, I of 1957, the defendant filed a petition, I. A. No. 1540 of 1957, on 17-8-1957 praying that as the suit has been stayed under the provisions of Act I of 1957 the order appointing the receiver may be vacated. Although this petition was opposed by the plaintiff the lower court allowed it on 26-9-1957 and cancelled the order appointing the receiver. The relevant portion of the lower court's order reads as follows: "The suit now stands stayed under Act I of 1957. The position is that the plaintiff cannot now do anything to recover the arrears of pattern for the recovery of which alone the suit has been instituted. There is no reason why the properties should under the circumstances remain in the management of a receiver. The plaintiff alleges that the defendant has not been maintaining the properties properly and that to put the defendant in possession of the properties will cause a further deterioration of the property. These are matters which do not properly arise for consideration in this suit for recovery of arrears of pattern only in respect of a holding in respect of which the defendant is entitled to permanency of tenure. These are matters which do not properly arise for consideration in this suit for recovery of arrears of pattern only in respect of a holding in respect of which the defendant is entitled to permanency of tenure. It is therefore ordered that the plaintiff will cease to function as receiver of the properties forthwith and will put the defendant in possession of the properties and that the question of his discharge will be considered when he moves for it". The appeal is against this order. 3. The view taken by the lower court does not appear to us to be correct. Although the plaintiff cannot now do anything to recover the arrears of rent due to him, Act I of 1957 has not put an end to his right to recover such arrears and has only suspended that right for the time being. All that S.4 of Act I of 1957 does is to prohibit the institution of suits for recovery of arrears of rent after the enactment of that Act and to stay suits already filed for arrears of rent. The section reads: "Notwithstanding anything to the contrary contained in any other law for the time being in force or in any contract, with effect on and from the commencement of this Act, no suit or other proceedings for eviction of a person from his holding or for recovery of arrears of rent in respect of, or for damages for use and occupation of, the holding accrued due before the commencement of the Kerala Stay of Eviction Proceedings Ordinance, 1957, shall lie in any court and all suits, proceedings in execution of decrees or orders and other proceedings pending in the courts at such commencement for such eviction or recovery of arrears of such rent or damages shall be stayed: ' ....................................................................................................................................................... As Act I of 1957 professes to be only a temporary legislation and S.1 thereof expressly says that the Act shall cease to have effect on the 11th day of October 1957 (the date of termination of the Act has been postponed to 11th April 1958) the prohibition and stay as per S.4 cannot operate as a prohibition and stay for ever and will amount only to a mere suspension of the rights of the plaintiff to recover the arrears of rent, for which he has already instituted the suit, during the period the Act remains in force. In other words, Act I of 1957 does not terminate or extinguish the rights of the plaintiff in a suit already filed to recover the arrears but only keeps those rights in suspension during the period the Act is in force. There is nothing in the Act which says that any action taken by a court, in a suit already instituted for recovery of arrears, to protect the rights of the plaintiffs - which, it has to be remembered, have not been terminated or extinguished but only suspended for the time being - has to be revoked on account of its enactment. S.4 is merely intended to preserve the status quo in respect of suits already instituted for recovery of arrears of rent during the period the temporary legislation is in force and to see that nothing prejudicial to the interests of both parties is done during that period. The section is intended merely to ensure the continuance of the existing state of affairs, without prejudice to either the lessee or the landlord until the time required for enactment of the permanent legislation regarding rights of landlords and lessees which is under the contemplation of the Legislature. The section is intended merely to ensure the continuance of the existing state of affairs, without prejudice to either the lessee or the landlord until the time required for enactment of the permanent legislation regarding rights of landlords and lessees which is under the contemplation of the Legislature. It is significant that in respect of such suits only a stay of proceedings has been directed and that there is no direction to put the tenant back in possession of the property if it had already been taken out of his hands before the enactment of the Act or Ordinance whereas express provision has been made in S.9 of the Act for revocation of certain previous acts or things done to the detriment of the tenant before its enactment and that dispossession by order of court of a tenant from a 'holding' before the enactment of the Kerala Stay of Eviction Proceedings Ordinance, I of 1957, is not one of the things which is liable to be set aside or cancelled under S.9. S.9 reads: "Where, after the commencement of the Kerala Stay of Eviction Proceedings Ordinance, 1957, any person, who has acquired a right to continue in possession of or to cultivate, any land or to continue in possession of any kudiyiruppu under the said Ordinance or under this Act, has been deprived of any of the aforesaid rights, he shall be entitled to apply to the court having jurisdiction in regard to a suit for eviction from the land or kudiyiruppu, for the restoration to him of such right and the court shall, if satisfied after such summary enquiry as the court deems fit, restore to him the said rights subject to all the obligations which he had immediately prior to such deprivation: Provided that where a person has been deprived of any of the aforesaid rights under the orders of any court, the application for the restoration of such rights shall be made to that court". Even if the appointment of a receiver and his act in taking possession of the suit property under the order of the court are to be viewed as dispossession of the tenant from his 'holding', if he was appointed and took possession of the property before the enactment of the Ordinance, the tenant will have no right to invoke S.9 of the Act which applies only to cases of deprivation of right, after the enactment of the Ordinance, to continue in possession. Having regard to the provisions of S.4 and 9 we are decidedly of the opinion that the view which has found favour with the learned Subordinate Judge, namely that, on account of the mere enactment of Act I of 1957, the order appointing the receiver in this case is liable to be revoked, is not correct. 4. Ordinarily a receiver will not be discharged until the object for which he was appointed has been fully accomplished or until the court is satisfied that the exigency calling for a receiver has ceased. (See Sir John Woodroff's Law relating to Receivers, 1956 Edition, p. 268). In the present case the receiver has been appointed for two reasons, namely, (1) for realising the mesne profits and making the same available for discharging the decree amount in case the plaintiff happens to get a decree and (2) to preserve the property & to see that it is not deteriorated and thus rendered insufficient to meet the liability for the decree amount. There was no suggestion in the defendant's petition and it was also not contended before us, that the receiver has collected mesne profits sufficient for discharging the balance due to the plaintiff out of the amount claimed in the suit. There was also no suggestion that there was no likelihood of the property being deteriorated if defendant was restored to possession. The only contention in the court below was that on account of the enactment of Act I of 1957 the plaintiff has no present right to recover the arrears of rent for which the suit has been instituted. Since his rights to recover the arrears of rent sued for have not been terminated or extinguished by the Act, as we have already pointed out, we hold that there was absolutely no justification in this case for cancellation of the order of appointment of the receiver. Since his rights to recover the arrears of rent sued for have not been terminated or extinguished by the Act, as we have already pointed out, we hold that there was absolutely no justification in this case for cancellation of the order of appointment of the receiver. We, therefore allow the civil miscellaneous appeal with costs and set aside the order of the lower court dated 26 91957 in I. A. No. 1540, which directs the plaintiff to cease to function as receiver and to put the defendant in possession of the property. Allowed.