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1975 DIGILAW 265 (KER)

GANGADHARAN NAMBIAR v. THAMBAYI

1975-10-17

G.VISWANATHA.IYER

body1975
Judgment :- 1. This second appeal is by the 6th respondent in a petition under S.6 of Act 9 of 1967 to set aside a sale under a decree for arrears of rent. The landlord filed O. S.1804/59 against one Ramankutty Nambiar for arrears of rent for the year 1134 and in execution of the decree brought the leasehold right to auction and one Kunhirama Marar purchased the property for Rs. 255/ - on 10 - 6 -1963. He took delivery of the property on, 30 - 7-1964, after removal of the obstruction put forward by respondents 1 to 3 in this second appeal. These respondents and respondents 4 and 5 had taken an assignment of the leasehold right in 1960 from the tenant. When Act 9 of 1967 was passed respondents 1 to 3 filed a petition under S.6 of that Act to set aside the sale on deposit of the sale amount. Later they did not want to prosecute the petition and so respondents 4 and 5 who were on the party array as respondents applied for transposition as petitioners and that was allowed. This Kunhirama Marar opposed the petition to set aside the sale stating that the petition filed under S.6 by the assignees of the tenant is not maintainable, that the order removing the obstruction filed by respondents 1 to 3 herein before delivery of the property is a bar to the maintainability of this petition, that he has effected valuable improvements in the property and that the petition is abated for failure to implead the legal representatives of the tenant who died pending the petition. Subsequently Kunhirama Marar assigned a portion of the property to the appellant herein. The appellant got himself impleaded as an additional respondent in the main petition and adopted the contentions of Kunhirama Marar. He further contended that the petition under S.6 of Act 9 of 1967 is not maintainable since all the persons interested in the tenancy right did not join in filing the petition and that the transposition of respondents 4 and 5 as additional petitioners does not in any way enable them to continue the petition filed by respondents 1 to 3 and to make use of the deposit made by the latter to set aside the sale. The trial court did not accept any of the contentions put forward by Kunhirama Marar and the present appellant, set aside the sale and allowed recovery of possession of the property. The appeal filed by the appellant was also dismissed and so he has come up in second appeal. 2. Before the appeal is considered on the merits it is necessary to dispose of a preliminary objection raised by the respondents' counsel that the appeal and second appeal from the order setting aside the sale under S.6 of Act 9 of 1967 is not maintainable. According to him, Act 9 of 1967 does not confer any right of appeal against the order passed thereunder. The appellant's counsel in answer stated that the order passed under S.6 of the Act is an order setting aside a sale held in execution of a decree and therefore is an order under S.47 C.P.C. and amounts to a decree within the meaning of the definition of 'decree'. The answer of the appellants is well-founded. The sale was held in execution of the. decree in O.S. No. 1804 of 1959. The petition to set aside that sale, though filed under S 6 of the Act, is a petition to vacate the sale held in execution. The order of satisfaction of the decree passed on the confirmation of the sale is sought to be vacated and the property taken "delivery of by the auction purchaser in execution of the decree in that case is sought to be re-delivered after setting aside the sale. There are matters relating to execution, discharge and satisfaction of the decree and the dispute though is now between the auction purchaser and the assignees of the defendant, comes within the scope of S.47 inasmuch as an auction purchaser is also deemed to be a party for the purpose of that Section. Hence the order amounts to a decree for the purpose of appeal and second appeal. Further, even viewing that petition to set aside the sale as an independent petition, that being one allowed to be filed, in the court as constituted under the Civil Courts Act, the provisions of the CPC., since they are not expressly or impliedly excluded to a proceeding under the Act, will apply to the case. Further, even viewing that petition to set aside the sale as an independent petition, that being one allowed to be filed, in the court as constituted under the Civil Courts Act, the provisions of the CPC., since they are not expressly or impliedly excluded to a proceeding under the Act, will apply to the case. The order under attack conclusively determines the rights of the parties as provided for in the definition of a'decree' in S.2(2) of CPC. and consequently the appeal and second appeal are maintainable. Hence the preliminary objection is over-ruled. 3. Under S.6 of Act 9 of 1967 a tenant dispossessed of a holding after 1st day of April, 1964, in execution of a decree and sale of the holding is entitled to restoration of possession of the holding if he deposits within six months of the Act the purchase money together with interest at the rate of 6% per annum in court and apply to the court to set aside the sale and restore possession. of the holding. Who is a tenant is not defined in the Act. But, S.2 provides that that term shall have meaning assigned to it in the Kerala Land Reforms Act 1 of 1964. In 1967 the definition of 'tenant" in Act 1 of 1964 was in the following terms: - " "tenant" means any person who has paid or has agreed to pay rent or other consideration, for his being allowed by another to possess and to enjoy the land of the latter, and includes - It did not include an assignee of a tenant. Though that definition has been amended by Act 35 of 1969 that amended definition will not apply to a petition under S.6 of the Act 9 of 1967. Though this Act also has been repealed by Act 35 of 1969, on the repeal the provision of S.4 of the Interpretation and General Clauses Act applies by virtue of S.1 sub-section 4 of the Act. Further, in view of the earlier order, confirmed by this Court in CRP. No. 306/ 71, the proceeding now under consideration is only a proceeding under Act 9 of 1967 and the rights of the parties have to be settled under that Act alone. Rights finally settled by a decree and court sale are sought to be affected by S.6 of the Act. No. 306/ 71, the proceeding now under consideration is only a proceeding under Act 9 of 1967 and the rights of the parties have to be settled under that Act alone. Rights finally settled by a decree and court sale are sought to be affected by S.6 of the Act. To the extent that Section gives relief that must be given effect to. There is no scope for granting that relief to those who are not mentioned in the Section. The object of the Section seems to be to give relief to indebted tenants. Their inability to pay off the arrears of rent resulted in the sale of the holding and S.6 is intended to give relief to such tenants. In other words, S.6 is intended to confer a benefit on the tenant who committed default in the payment of rent. His assignee will not get that benefit. A similar question arose in connection with the applicability of S.106 of Act 1 of 1964 to an assignee of a lessee. In Lakshminarayana Shetty v. Andonhi Beary (1971 KLT. 822) this Court held that it applies only to the person to whom a lease was granted and who on the basis of the lease constructed a building for an industrial or commercial purpose. A transferee of such a lessee was held to be not protected. The principle of that decision applies to a case under S.6 of Act 9 of 1967 as well. I am aware that the scope of the definition of a 'tenant' has been now enlarged to include an assignee and a provision similar to S.6 of Act 9 of 1967 has been added as S.13A to Act 1 of 1964 by the amending Act 35 of 1969. If the application has to be considered as an application under S.13A of Act 1 of 1964 as amended, possibly an assignee of a tenant would have got the benefit to set aside the sale. But, since by the earlier order the application has to be considered only as an application under S.6 of Act 9 of 1967, I hold an assignee of a tenant is not entitled to the benefit of S.6 of the said Act. 4. Two other points were also raised by the appellant against the petition for restoration of possession. Respondents 4 and 5 did not deposit any amount to set aside the sale. 4. Two other points were also raised by the appellant against the petition for restoration of possession. Respondents 4 and 5 did not deposit any amount to set aside the sale. They are trying to make use of the deposit made by respondents 1 to 3. It is contended that their deposit cannot be availed of when they do not want to press the petition. Another contention is that the order transposing respondents 4 and 5 as petitioners in the main petition is wrong. In view of my conclusion on the first point it is not necessary to express any opinion on the latter two contentions of the appellant. 5. In the result, I allow this second appeal and set aside the orders passed by the lower courts and dismiss the application LA. 442 of 1967 filed to set aside the sale held in execution of the decree in O.S. No. 1804 of 1959. In the circumstances of this case the parties shall bear their costs. Allowed.