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1975 DIGILAW 333 (KER)

Devassy v. Raman

1975-12-15

K.BHASKARAN

body1975
JUDGMENT K. Bhaskaran, J. 1. The main point that arises for consideration in this execution second appeal is whether by virtue of the non obstanti clause in sub-section (1) of section 73 of the Kerala Land Reforms Act 1 of 1964 as amended by Act 35 of 1969, hereinafter referred to as the Act, one of the parties to an earlier proceeding, in which disputed facts have been finally determined, would be entitled to have the very same questions reopened for a fresh enquiry and disposal. 2. The respondents-decree-holders had in O.S. No. 186 of 1952 on the file of the Subordinate Judge of Trichur obtained a decree against the appellant-judgment-debtor for arrears of rent for a portion of the year 1126 and for the entire year 1127. E.P. No. 62 of 1956 filed by the decree holders on 22nd March 1956 was dismissed on 27th May 1956 as the attachment of the standing crop ordered could not be effected. On 27th May 1956 a certain amount in partial satisfaction of the decree was paid by the judgment debtor to the decree-holders. Subsequently in E.P. No. 10 of 1959 the judgment-debtor contended that there had been full satisfaction of the decree amount by the execution of a deed of assignment in favour of the wife of the first plaintiff, which according to him, was in the nature of a surrender in respect of a portion of the property held by him under the plaintiffs-decree-holders. That objection was repelled by the execution court on the ground that admittedly the alleged satisfaction of the decree was not recorded within 90 days as required by law, and as such the court could not go into the merits of the alleged satisfaction. However, the court stayed the proceedings in view of the provisions contained in Act 1 of 1957. Subsequently E.P. No. 61 of 1963 was filed by the decree-holder for execution of the decree. Therein the judgment-debtor raised two-fold objections: (1) the decree was satisfied by the execution of an assignment in favour of the wife of the 1st plaintiff-decree-holder as early as in the year 1956; and (2) the execution should be stayed under the provisions of Act VII of 1963. Therein the judgment-debtor raised two-fold objections: (1) the decree was satisfied by the execution of an assignment in favour of the wife of the 1st plaintiff-decree-holder as early as in the year 1956; and (2) the execution should be stayed under the provisions of Act VII of 1963. In regard to the first objection the execution court held: "Therefore I find the bar of res judicata applies to the plea of satisfaction of the decree in 1956 by assignment of the property in favour of the decree-holders wife. The plea for the stay of the proceedings under Act VII of 1963 also was repelled by the execution court. Against the decision of the execution court the judgment-debtor filed A.S. No.251 of 1963 on the file of the District Court, Trichur, which court confirmed the decision of the execution court by the judgment dated 7th July 1964. The decisions of the execution court and the first appellate court were challenged by the judgment-debtor in S. A. No. 1329 of 1964. While disposing of the Second Appeal, this Court observed as follows: "Both the courts below concurrently found that the appellants (2nd defendant) plea that there had been an adjustment and satisfaction of the decree by the execution of a portion of the property could not be entertained as the same had been found against on a prior occasion in E.P. 10 of 1959 on the ground that the adjustment or payment had not been certified in time. Counsel for the appellant is correct in his contention that he is now entitled to the benefit of section 73 of Act I of 1964 as amended by Act 35 of 1969 and to the statutory discharge of arrears of rent provided thereunder. Whether by reason of the non obstanti clause in the said section which gets rid of any decree or order, the appellant is still entitled to the uncertified payment or adjustment in claiming the statutory discharge is a matter on which I need not at this stage express any opinion. The decree of the courts below is set aside and the matter is remitted to the execution court for investigation as to whether, and if so to what extent the appellant is entitled to the statutory relief provided for under section 73 of Act I of 1964. The Second Appeal is allowed as above. The decree of the courts below is set aside and the matter is remitted to the execution court for investigation as to whether, and if so to what extent the appellant is entitled to the statutory relief provided for under section 73 of Act I of 1964. The Second Appeal is allowed as above. No costs." It is thereafter that the decree-holders have filed E.A. 620 of 1972 under section 73 (3) of the Act praying that there be a declaration that the judgment-debtor is liable to pay the decree amount to them, subject to the provisions of section 73 of the Act. The appellant-judgment-debtor contested that petition, pleading again that by certain uncertified payments or adjustments the decree had already been fully wiped off. The execution court held that there was nothing in the non obstanti clause in section 73 to show that the legislature intended uncertified payments or adjustments also to be considered in computing the amount outstanding due on the date specified therein, and declared that the decree-holders would be entitled to realise the entire amount claimed in the execution petition and that the judgment-debtor was liable to pay the same. Aggrieved by the decision of the execution court the matter was taken up in appeal in A.S. No. 155 of 1973 on the file of the District Judge, Trichur. The learned District Judge has confirmed the decision of the execution court, and dismissed the appeal; hence this execution second appeal. 3. Sri N. K. Sreedharan, the counsel for the appellant, submits that the non obstanti clause in sub-section (1) of section 73 of the Act, is wide enough to enable the appellant to seek reopening of the finding entered earlier that the judgment-debtor was not entitled to plead satisfaction which was not recorded within 90 days of the alleged payment or satisfaction as required under article 174 of the Limitation Act of 1908, which has now been replaced by article 125 of the Limitation Act of 1963. The counsel further contends that the observation by this Court in S.A. No. 1329 of 1964 that Counsel for the appellant is correct in his contention that he is now entitled to the benefit of section 73 of Act I of 1964 as amended by Act 35 of 1969 and to the statutory discharge of arrears of rent provided thereunder would also enable him to have a reopening of the findings previously entered by the courts below on the question of the plea of discharge raised by the appellant-judgment-debtor. Subsection (1) of section 73 of the Act reads as follows: Notwithstanding anything to the contrary contained in any other law for the time being in force, or in any contract, or in any judgment, decree or order of any court or tribunal, the landlord of a tenant specified in column (1) of the table below shall be entitled to recover towards arrears of rent accrued due before the 1st day of May 1968 and outstanding at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, only the amount specified in the corresponding entry in column (2) of the table: * * * * * * *� The argument of the counsel is that the wording One years rent or the actual amount in arrears, whichever is less� used in column (2) of the table given in section 73 would indicate that the legislature really contemplated a thorough enquiry into the question as to what was the actual amount in arrears without any inhibition, whatsoever, contained in any other law, contract, judgment, decree, or order. Sub-section (3) of section 73 of the Act reads as follows: "Where any decree or order has been passed in favour of a landlord before the commencement of the Kerala Land Reforms (Amendment) Act, 1969, by any court or Land Tribunal for the recovery of arrears of rent accrued due prior to the 1st day of May 1968, such decree or order shall be enforceable only to the extent of the amount due to such landlord under sub-section (1); and to determine such amount any of the parties to the decree or order may apply to the court or the Land Tribunal, as the case may be, which passed the decree or order, to amend such decree or order in accordance with the provisions of sub-section (1)."� In this context the provisions contained in section 127 of the Act also may be considered. That section provides as follows: "The provisions of this Act shall have effect notwithstanding anything in any other law or any custom or usage or in any contract, express or implied, inconsistent with the provisions of this Act." It has now to be considered whether the wording in section 127 and sub-section (1) of section 73 of the Act would entitle the appellant-judgment-debtor to have the finding with respect to his plea of discharge of rent reopened. In this connection, the counsel for the appellant submits that there had not been any adjudication earlier on that point on merit, and that the plea of the appellant was negatived for the reason that within 90 days of the alleged payment or satisfaction that fact was not sought to be recorded by the judgment-debtor as required under Order XXI, rules 2 and 3 of the Code of Civil Procedure read with article 174 of the Limitation Act of 1908. What is stressed by Sri Sreedharan is that the provisions contained in the non obstanti clause in sub-section, (1) of section 73 is wide enough to have a reopening of the question of arrears of rent in all cases, inasmuch as in this case there had never been a decision on merit on the plea of full satisfaction of the decree in view of the statutory bar under Order XXI, rules 2 and 3 C.P.C. read with article 174 of the Limitation Act 1908, it is all the more reasonable that the issue must be treated as at large, and fresh enquiry held to determine the actual arrears after deciding the plea of full satisfaction of the decree on the merit. 4. Sri V. M. Prabhakaran Nair, the counsel for the respondents, submits that the plea of the appellant is something beyond the scope of section 73 of the Act. According to him what is contemplated by the legislature in sub-section (1) of section 73 of the Act is to restrict the liability of the judgment-debtor with regard to payment of arrears of rent to what is indicated in the table contained in that sub-section where the liability fixed by any other law, contract, judgment, decree or order exceeds it (what is indicated in the table). The counsel draws my attention to the provisions contained in rules 16 to 22 of the Kerala Land Reforms (Tenancy) Rules, 1970, framed under sections 26 and 73 of the Act. In those rules it is specifically provided that in execution matters, as far as may be, the provisions contained in the Code of Civil Procedure shall govern the proceedings before the Land Tribunal. No doubt, those rules relate only to proceedings in execution before the Land Tribunal. If, as a matter of fact, execution proceedings before the Land Tribunal are to be governed by the Code of Civil Procedure, one fails to understand how execution proceedings in the civil courts, could be governed by any provisions other than what is contained in the Code of Civil Procedure and the Limitation Act. If, as a matter of fact, execution proceedings before the Land Tribunal are to be governed by the Code of Civil Procedure, one fails to understand how execution proceedings in the civil courts, could be governed by any provisions other than what is contained in the Code of Civil Procedure and the Limitation Act. I am in agreement with the contention of the counsel for the respondents that the provisions contained in the non obstanti clause in sub-section (1) of section 73 of the Act does not confer a right on the judgment-debtor to have questions of fact previously determined to be reopened and reagitated for a fresh appraisal and fresh determination. The real scope of the non obstanti clause of section 73 seems to be this: If any decree, judgment or order previously passed, or any law or contract, required the judgment-debtor to pay anything more than what is indicated in the table contained in the sub-section, it is what is indicated in the table that would prevail over the decree, judgment, order or any other provision of law or contract running counter to that. I am of the opinion that where in a case like this, repeatedly it has been held by the court in earlier proceedings that by virtue of the provisions contained in Order XXI, rules 2 and 3 of the C. P. C. and article 174 of the Limitation Act, 1908, the judgment-debtor was not entitled to plead satisfaction, the provisions contained in section 73 of the Act would not enable him to have the matter reopened and determined afresh after reagitating the whole issue over again. The provisions contained in Order XXI, rules 2 and 3 of the C. P. C. and article 125 of the Limitation Act, 1963 have not been rendered inoperative by the non obstanti clause in section 73 (1) of the Act; and it is not open to the judgment-debtor to contend for the position that section 73 of the Act gives him a right to ignore the earlier decisions given by the courts on the basis of the provisions contained in the C. P. C. and the Limitation Act. Moreover, the rule of res judicata is based on principles of public policy and therefore it cannot be contended that anything contained in sub-section (1) of section 73 would clothe the appellant-judgment-debtor with power to ignore the finding already arrived at in previous proceedings. To allow the plea of the appellant would be to introduce in section 73 something which the legislature never contemplated. This reasoning would equally hold good with respect to the plea of the appellant that this Court in S. A. No. 1329 of 1964 had given him a right to reagitate the question. As far as I could understand, this Court in its judgment only enabled the appellant to claim the reliefs which he is entitled under the provisions of section 73 of the Act. For the reasons stated above, the second appeal fails and is dismissed, however, in the peculiar circumstances of the case, without any order as to costs.