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1959 DIGILAW 155 (KER)

Narayanan Nambiar v. Raman

1959-06-24

C.A.VAIDIALINGAM

body1959
Judgment :- 1. The plaintiff decree-holder, who is the appellant before me, instituted the suit O.S. 693/1955 for recovery of possession from the tenant the respondent herein. A decree was passed on 29th September 1955. 2. Clause.l of the decree was to the effect that on the tenant paying within 2 months from that day the amount mentioned therein, the suit shall stand dismissed. 3. Clause.2 provided that in default of the payment of the amount mentioned in Clause.l the plaintiff was entitled to recovery of possession of the plaint schedule properties along with the amount stated therein. There is no dispute that the decree as it originally stood, gave a right to the land-lord to get arrears of pattom for the years 1129 and 1130 alone. E. A. 814/1955 was filed by the defendant-tenant to record full satisfaction of the decree and on 1-2 -1956, full satisfaction was recorded. Subsequently, the plaintiff appears to have filed a memorandum to amend the decree dated 29-9-1955 by incorporating a provision regarding the payment of future rent by the tenant, that is, the rent for the year 1131 also. Accordingly, an amendment was duly made in the decree by providing in Clause.l as it originally stood, for payment also of the future rent due as shown later in the decree. 4. Clause.3 of the decree as subsequently amended, was to the effect that the defendant is to pay the plaintiff future rent from 1131 onwards at the rate mentioned therein and also before the period mentioned in Clause.l. There were also certain other directions which are not necessary to consider. But unfortunately, though the decree as passed on 29-9-1955 gave a period of 2 months for depositing the amounts, notwithstanding the fact that on 22-2-1956 the decree was amended by directing the tenant to pay the pattom for 1131 also, everybody seems to have missed that the period mentioned in Clause.l has not been refixed. But whatever it is, the decree as it now stands, provides for payment of the various amounts mentioned therein within 2 months from 29-9-1955. 5. The plaintiff filed an application E. A. 212/1956 for reviewing the previous order dated 1-2-1956 regarding full satisfaction. Accordingly, on 2-3-1956 under order evidenced by Ext. Al, the Court reviewed its previous order and recorded only part satisfaction of the decree. 6. 5. The plaintiff filed an application E. A. 212/1956 for reviewing the previous order dated 1-2-1956 regarding full satisfaction. Accordingly, on 2-3-1956 under order evidenced by Ext. Al, the Court reviewed its previous order and recorded only part satisfaction of the decree. 6. In the meanwhile, the tenant appears to have been taking steps in the rent court for fixation of a fair rent for his holding and under order dated 24-11-1955, the rent court fixed the fair rent for the holding. 7. In view of the fixation of the fair rent by the rent court, the tenant deposited in court certain amounts - which according to him, represent the balance due to the land-lord in respect of his whole claim for 1129, 1130 and 1131. The tenant also filed E. A. 239/1956 to record full satisfaction on the basis of this deposit as the amount according to him, will discharge his entire liability for the 3 years mentioned above. 8. But on 25-6-1956, the court by its order, Ex. A2 declined to grant the prayer stating that the period of 2 months, as provided in the decree dated 29-9-1955 has already expired and that the court has no jurisdiction to entertain the application and that the tenant should take appropriate steps to have the decree amended accordingly. After the rejection of the application, E.A. 239/1956, the land-lord in turn, filed on 2-3-1956 an application, R. E. P. 168/56 for delivery of possession of the properties as per the terms of the decree in the suit in consequence of the default committed by the tenant for depositing the amounts of arrears mentioned therein. By his order dated 25-6-56 evidenced by Ex. A3 the learned District Munsiff ordered the application and on 27-6-56, the plaintiff took possession of the property. 9. After all these proceedings, the tenant filed two applications, I. A. 1298/56 and I. A. 2254/56 in November 1956, out of which the present second appeal arises. I. A. 1298/56 was filed to amend the decree in the suit and grant time to the petitioner to deposit the amount as per the rate fixed by the rent court and also for extension of time. I. A. 2254/56 was filed to enter full satisfaction after extending time. Both these applications were allowed by both the subordinate courts and this appeal is by the plaintiffdecree-holder. 10. I. A. 2254/56 was filed to enter full satisfaction after extending time. Both these applications were allowed by both the subordinate courts and this appeal is by the plaintiffdecree-holder. 10. I am not impressed with the contentions of Mr. V. P. Gopalan Nambiar regarding the criticism against the several points discussed and considered by both the courts and held against the plaintiff. But, the two points that require consideration by me are the contentions based, namely, that the decree in the suit being a self-contained one fixing a period, in default of which certain consequences are to follow, the trial court here had no jurisdiction to grant or extend the time which long ago expired. The second contention was that the application having been filed under S.7 of the Malabar Tenancy (Amendment) Act-Act 22/1956 it cannot affect the decrees which have already become fully satisfied. 11. So far as the first point is concerned, Mr. V. P. Gopalan Nambiar very strongly relied upon the order, Ex-A2. The order, Ex. A2, it should be remembered, was passed on an application filed by the tenant for amending the decree and permitting him to deposit the amounts as per the rate fixed by the rent court. No doubt, the learned District Munsiff considered that application and came to the conclusion that he was only acting as an executing court and that it cannot go behind the decree. It observes that if the order of the rent court is followed, the case of the tenant is true and correct. But it was of the opinion that "unless and until the petitioner gets the decree amended in accordance with the finding of the rent court, it cannot ask the execution court to look into the rent court's order and go behind the decree". 12. But there is a further significant direction in the judgment namely, that it is open to the tenant to take steps to get the decree amended and thereafter come forward with such an application for either entering up full satisfaction or for having the original decree amended. It is really on the basis of these observations that the said application was dismissed. But having stated that the application is to be dismissed, the learned District Munsiff made another observation namely, that the deposit itself is out of time. It is really on the basis of these observations that the said application was dismissed. But having stated that the application is to be dismissed, the learned District Munsiff made another observation namely, that the deposit itself is out of time. It is really on the latter part of the order of the learned District Munsiff contained in Para.3 that Mr. V. P. Gopalan Nambiar places considerable reliance. 13. No doubt, technically, he is right that the decree dated 29-9-1955 even after amendment, gave only 2 months' time to the tenant to pay the entire amount mentioned therein. But this argument, if accepted, will lead to incongruous results which I am not inclined to permit. Because, admittedly, it was only on 22-2-56, at the instance of the land-lord that the decree passed on 29 91955 was amended incorporating Clause.3 giving a right to the land-lord to get the Pattom for the year 1131 M. E. also. It is unfortunately due to a mistake of all parties, that Clause.1 as it originally stood, which gave two months' time and in effect will mean 29-11-1955, was omitted to be noticed and allowed to stand. If the contention of Mr. Gopalan Nambiar is accepted it will mean that in pursuance of an order passed on 22-2-56 a party to a litigation should pay the amount due thereunder on 29-11-1955. It is impossible to accept the technical contention of Mr. Gopalan Nambiar which will lead to this incongruous result. The decree also must receive a fairly liberal interpretation and the fact that the same period of time was mentioned therein should not be put against a party, who should really have been given some more time under the amended decree passed on 22-2-1956. In my opinion, the larger interpretation of that decree must really be that he will have the same period from the date of amendment for paying the rent for 1131 as was originally provided for the payment for the years 1129 and 1130. It is not the case of Mr. Gopalan Nambiar that the amounts were not deposited by the tenant within 2 months from 22-2-1956. 14. I cannot also accept the contention of Mr. Gopalan Nambiar that the order, Ex. A2, really concludes the rights of the parties. It is not the case of Mr. Gopalan Nambiar that the amounts were not deposited by the tenant within 2 months from 22-2-1956. 14. I cannot also accept the contention of Mr. Gopalan Nambiar that the order, Ex. A2, really concludes the rights of the parties. As I have mentioned earlier, the learned District Munsiff was of the view that he has really no jurisdiction to go into all the matters raised by the tenant and in fact, he specifically says in so many words that it is open to the defendant to take steps to get the decree amended after having dismissed this application. In my opinion, the learned District Munsiff has traversed beyond the scope of those proceedings when he made the further observations about the construction to be placed on the decree and further saying that the tenant had made the deposit out of time. After all, the order of a court cannot be construed in such a way that it imposed condition which is impossible in the nature of things to be complied with. Putting this interpretation on the decree, I am of the view that the trial court had jurisdiction to extend the time fixed under the original decree dated 29-9-1955. 15. The second contention of Mr. Gopalan Nambiar is that S.7 of the Malabar Tenancy (Amendment) Act, Act 22/1956 will only apply in cases of subsisting decrees and not to decrees which have become already closed. According to him, in this case, by taking possession of the properties on 27-6-1956, the decree has been fully satisfied so far as he is concerned and S.7 of the Malabar Tenancy (Amendment) Act-Act 22/1956, will not apply. Without in any way considering the scope of S.7, on the basis of this contention, the second appeal could be disposed of otherwise. 16. Though originally full satisfaction was recorded on 1-2-1956, the plaintiff himself got this order of entering full satisfaction reviewed as per order E. A. 212/1956. So far as the records now stand, there is the order, Ex. Al dated 2-3-1956 under which there has been only a part satisfaction of the decree recorded. No doubt, Mr. Gopalan Nambiar relied upon the order dated 25-5-1956 namely, Ex. A3 which directed delivery of possession to be given to the plaintiff on the basis that there has been a default by the tenant. Al dated 2-3-1956 under which there has been only a part satisfaction of the decree recorded. No doubt, Mr. Gopalan Nambiar relied upon the order dated 25-5-1956 namely, Ex. A3 which directed delivery of possession to be given to the plaintiff on the basis that there has been a default by the tenant. That really is based again on the view that there is a default committed by the tenant inasmuch as he has not deposited the amount within 2 months mentioned in the decree dated 29-9-1955.1 have shown that such an interpretation on that decree cannot be allowed. It is really on such an interpretation that the order of delivery came to be passed under Ex. A3. Even otherwise, Ex. A3 will not stand in the way of giving relief to the tenant in this case, because the learned District Munsiff says: "If the respondent gets the decree amended and thereafter satisfies the court that there has been a proper deposit, he may apply for redelivery" 17. Therefore, this order is really conditional and subject to a final adjudication of the rights of the tenant in a proper application. I am not deciding in this matter the larger contention raised by Mr. V. P. Gopalan Nambiar that S.7 of the Malabar Tenancy (Amendment) Act-Act 22/1956 will apply only to decrees which are still subsisting and not to decrees which have become closed. Therefore, in this case on the facts, I am of the opinion that the decree is subsisting and therefore, even if Mr. Gopalan Nambiar is right in his contention regarding the interpretation of S.7 of the Act, the tenant is entitled to get relief in this case. 18. Apart from the other points which I have held against Mr. Gopalan Nambiar, these two contentions also fail and this second appeal is dismissed with costs. No leave. Dismissed.