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1973 DIGILAW 323 (KER)

PARAMESWARAN NAMBUDIRI v. KALYANI

1973-12-06

GEORGE VADAKKEL, V.P.GOPALAN NAMBIYAR

body1973
Judgment :- 1. This revision petition has been referred to a Division Bench by our learned brother Eradi J., who was prima facie inclined to agree with the decision of Bhaskaran J. in an unreported judgment in O. P. No. 3872 of 1970, and who felt that the unreported judgment of Krishnamoorthy Iyer J. in CRP. Nos. 1090 and 1091 of 1972 required re-consideration. 2. In execution of the decree in O. S.623 of 1954, Munsiff's Court, Wadakkancherry, as modified by the decree in A. S.55 of 1956, District Court, Trichur, the Ist respondent's rights as a tenant were sold and purchased by the revision-petitioner, who was the decree-holder. The property was delivered over to the purchaser. The 1st respondent filed an application for restoration of possession under S.6 of Act 9 of 1967. The same was filed on 27-1-1968. Act 9 of 1967 was a temporary enactment, which remained in force till 31-12-1969. S.1, Clause (4) of that Act enacted that on the expiry of the Act, the provisions of S.4 of the Interpretation and General Clauses Act 1125, shall apply as if the Act had been repealed by an Act of Kerala State Legislature. Act 35 of 1969 was passed into law with effect from 1-1-1970. The same contained a provision, S.13-B, substantially on the same terms as S.6 of Act 9 of 1967, with a proviso super-added. The proviso said that an application for restoration of possession by the dispossessed tenant (which was contemplated also by S.6 of Act 9 of 1967) would not lie against a bona fide purchaser for value after the date of dispossession and before the date of publication of the Land Reforms Amendment Bill, 1968. The revision petitioner would contend that after the delivery of possession in execution of the court-auction sale and purchase, be had entered into an agreement with a stranger, one Narayanan Nair, received a part of the consideration, and put the stranger in possession on 31-12-1967. The said Narayanan Nair is not a party to these proceedings. 3. Both the courts below held that the respondent's application for restoration was liable to be dealt with under the provisions of Act 9 of 1967, unaffected by the provisions of the subsequent Act 35 of 1969. The said Narayanan Nair is not a party to these proceedings. 3. Both the courts below held that the respondent's application for restoration was liable to be dealt with under the provisions of Act 9 of 1967, unaffected by the provisions of the subsequent Act 35 of 1969. In revision, the petitioner contends that the application should have been dealt with under the provisions of the said later Act of 1969, and in particular, of the proviso to S.13-B of that Act. To show that Act 35 of 1969 would apply to the proceedings, the petitioner's Counsel relied upon S.108(3) of the transitory provisions of the Land Reforms Act. The said Section as it now stands reads: "108(3). If in any suit, application, appeal, revision, review, proceedings in execution of a decree or other proceedings pending at the commencement of this section before any court, tribunal, officer, or other authority, any person claims any benefit, right or remedy conferred by any of the provisions of the principal Act or the principal Act as amended by this Act such suit, application, appeal, revision, review, proceedings in execution or other proceedings shall be disposed of in accordance with provisions of the principal Act as amended by this Act". Before its amendment by Act 25 of 1971, the Section was differently worded. The scope of the pre-amendment Section feel to be considered by a Full Bench of this Court in K. P. Mohammed & Others v. Maya Devi (1971 KLT, 284-F.B ). It was pointed out that Clause (3) of S.108 applies only in respect of any matter, arising under and provided for by the "Principal Act", which underlined expression, on the express provisions of S.1 of Act 35 of 1969, meant, Act I of 1964. Applying the principle of that decision, there is nothing in Act T of 1964 which conferred upon a tenant, in circumstances such as what has been disclosed in this case, the right of restoration. Nor is the position improved by the amendment of S.108(3) introduced since the Full Bench decision; because, there was no application pending at the commencement of the Section in which a right or remedy conferred by the provisions of the Principal Act as amended by Act 25 of 1971, was pending adjudication. Therefore, S.108(3) on which the petitioner's Counsel placed reliance to attract S.13-B, cannot avail the petitioner. Therefore, S.108(3) on which the petitioner's Counsel placed reliance to attract S.13-B, cannot avail the petitioner. It follows that we cannot agree with the view taken by Bhaskaran J. in the unreported judgment in O.P. 3872 of 1972; nor with the prima facie concurrence with the view, expressed by Eradi J. in the order of reference. The unreported judgment of Bhaskaran J. did not discuss the question as to whether an application filed under Act 9 of 1967 and pending before the date of commencement of Act 35 of 1969, is liable to be disposed of in accordance with the provisions of the latter, having regard. in particular, to S.108 (3) of the transitory provisions of Act 35 of 1969. 4. Counsel for the petitioner contended that the re-enactment of S.13-B by Act 35 of 1969 with a proviso superadded, would evince an "intention to the contrary", and therefore the provisions of S.4 of the General Clauses Act would not be attracted, so as to continue the proceedings under the earlier Act. We are quite unable to agree. For the one thing, S.1 (4) of Act 9 of 1967 expressly enacts that the provisions of S.4 of the General Clauses Act would have application on the expiry of the Act. For another, as pointed out by the Supreme Court in State of Punjab v. Mohar Singh Pratap Singh (AIR. 1955 S. C. 84) and other decisions, the line of enquiry should be, not whether the right conferred by the repealed Section, has been kept alive by the re-enacted Section, but whether there is anything in the re-enacted provision which expressly destroys the anterior right. So viewed, we are of the opinion that there is nothing in the provisions of S.13-B of Act 35 of 1969 to show that the anterior right under S.6 of Act 9 of 1967 had been destroyed. 5. We are incomplete and respectful agreement with the decision of Krishnamoorthy Iyer J., in C. R. P. Nos. 1090 and 1091 of 1972, where this precise question came up for consideration. The learned judge took the view that the application filed under S.6 of Act 9 of 1967 which was pending on the date of commencement of Act 35 of 1969, was liable to be continued and dealt with under the provisions of the earlier Act, untrammelled by the provisions of the later Act. The learned judge took the view that the application filed under S.6 of Act 9 of 1967 which was pending on the date of commencement of Act 35 of 1969, was liable to be continued and dealt with under the provisions of the earlier Act, untrammelled by the provisions of the later Act. We cannot share Eradi J.'s view that the decision requires re-consideration. 6. We dismiss this revision petition with costs. Dismissed.