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1987 DIGILAW 440 (KER)

CHERUKUTTY v. SUBRAMA SASTRIGAL

1987-09-03

BALAKRISHNAN, JOHN MATHEW

body1987
Judgment :- 1. The 1st respondent in this appeal, who is hereinafter referred to as the decree-holder, filed EA No. 570 of 1978 in EP No. 213 of 1974 in OS No. 42 of 1971 before the Subordinate Judge's Court, Palghat, for attachment and sale of the immovable properties belonging to the judgment-debtor therein. Accordingly the properties were attached and sold in court auction on 3-4-1978. The decree-holder himself bid the properties in auction in two lots for Rs. 1,00,002/-. The sale was confirmed on 15-6-1978. He filed E A No. 421 of 1978 for delivery of the properties. Regarding lot No. 2 there was resistance for delivery by the appellant herein who filed EA No. 468 of 1978 claiming that the said property was in his possession as a lessee since 27-11-1974. According to him, he was not aware of the decree and sale till the Amin came to the property to effect delivery Therefore the decree-holder is entitled to get only symbolical delivery and the prayer for possession has to be disallowed. The decree-holder thereupon filed EA No. 570 of 1978 for delivery after removal of resistance. In that application he contended that the appellant had no valid title or possession over the properties and his claim was without any merit. The decree-holder bad filed IA No. 712 of 1971 on 7-4-1971 for an interim attachment of properties. At that time the judgment-debtor had filed an undertaking on 8-4-1971 not to alienate the properties. Therefore the alleged lease in favour of the appellant is invalid. The lower court accepted the contentions of the decree-holder and ordered delivery after removing resistance. The appellant is challenging the said order in this appeal. 2. Ext.A1 is the copy of the petition, IA 712 of 1971, filed by the decree-holder for attachment before judgment in O.S. 42 of 1971, Sub Court, Palghat. Ext.A1 shows that an affidavit was filed by the judgment-debtor undertaking not to alienate the property till the disposal of the suit. The Sub Court dismissed the petition in view of the affidavit filed by the Judgment-debtor. Ext.A2 is the affidavit in support of Ext.A1 petition for attachment before judgment. Ext.A3 is the affidavit dated 8-4-1971 filed by the judgment-debtor (defendant in OS No. 52 of 1971. Sub Court, Palghat). In the affidavit he denied the allegations in the affidavit of the decree-holder. Ext.A2 is the affidavit in support of Ext.A1 petition for attachment before judgment. Ext.A3 is the affidavit dated 8-4-1971 filed by the judgment-debtor (defendant in OS No. 52 of 1971. Sub Court, Palghat). In the affidavit he denied the allegations in the affidavit of the decree-holder. Subsequently he gave an undertaking that he will not sell, alienate, or give possession of the properties to strangers till the final disposal of the said suit. The appellant produced Ext.B1 to B11 in order to prove that he was paying the building tax, water charges and also the licence fee for his business after the alleged lease in his favour. Exts. B12 to B15 are the rent receipts for the building issued to the appellant. Ext.B16 is the copy of the judgment in OS No. 129 of 1979 filed by the decree-holder in this suit against the appellant herein. 3. There is not much controversy regarding facts. The alleged lease in favour of the appellant was after Ext.A3 undertaking by the judgment-debtor dated 8-4-1971. According to the appellant, this property was outstanding on lease with the Lord Krishna Bank at the time of Ext.A3 undertaking itself. Subsequently the appellant was put in possession as lessee. According to learned counsel for the appellant the judgment-debtor was entitled to lease out the property and that will not amount to alienation or handing over possession which alone was prohibited under Ext.A3 affidavit. It was also contended that the finding of the lower court that the appellant has not proved the lease is also liable to be set aside in view of the evidence produced by the appellant. The alleged lease was on 21-11-1974. No lease deed is produced, even though as Rw.1 the appellant stated that he had executed a karar dated 21-11-1974 with the judgment-debtor. However, according to him, the agreement was in the possession of the judgment-debtor and it was stated that he will be producing a copy of the same. From a reading of the evidence of Rw.1 it would appear that he had produced a document which required registration and therefore it was not marked. The 2nd judgment-debtor, who is the wife of the 1st judgment debtor, was summoned to produce the lease deed. But she did not produce the document. From a reading of the evidence of Rw.1 it would appear that he had produced a document which required registration and therefore it was not marked. The 2nd judgment-debtor, who is the wife of the 1st judgment debtor, was summoned to produce the lease deed. But she did not produce the document. In Ext.B1 letter dated 30-1-1978 stated to have been sent to the appellant by the 2nd judgment-debtor to pay the building tax there is no mention that the appellant was a lessee of the building. There is some discrepancy in the door No. of the building shown in the execution petition and the No. shown in Ext.B2 building tax receipt. In the other documents produced also there is some difference in the No. of the house. The lower court therefore rightly held that none of these document prove a lease by the judgment-debtor to the appellant. Ext.B16 judgment also does not show that the building was teased out to the appellant. Exts. B-12 to B-15 receipts also do not show that the receipts were for the petition schedule property. Learned counsel for the decree-holder, submitted that when the Amin went for effecting delivery the case put forward by the appellant was that, the property was sold by the judgment-debtor to him for Rs. 6,000/-. At that time there was no claim that he was a lessee. According to learned counsel this itself was a strong circumstance against the claim of lease. 4. The decree-holder has an alternate contention that in any view of the case the judgment-debtor cannot create a valid lease deed in view of Ext.A3 undertaking He cannot transfer possession or lease out the property at a time when he was bound by his own undertaking. 5. Learned counsel for the appellant referred to The Delhi and London Bank, Limited v. Ram Narain (ILR 9 Allahabad 407) and submitted that even if there was a temporary injunction, a mortgage effected subsequent to that will not be void. Reliance was also placed on Joy v. Stephen Jacob (1984 KLT 72). In that case a lease was given in respect of property about which a suit for declaration of the rights of the plaintiff and to recover the same from the landlord was pending. Reliance was also placed on Joy v. Stephen Jacob (1984 KLT 72). In that case a lease was given in respect of property about which a suit for declaration of the rights of the plaintiff and to recover the same from the landlord was pending. This Court held that even though the suit was decreed ultimately the tenant can be evicted only under the Rent Control Act and not in execution of the decree. The facts of the case are clear from the following passage in the judgment. "The petitioner was inducted as tenant by the guardian of the 1st respondent as per Ext.A1 registered deed It is not brought out in the case that Ext.A1 makes any mention about the suit O. S No. 81 of 1978 and it contains a condition that the petitioner should vacate if the above suit is decreed. In view of this it was wrong on the part of the courts below to have come to the conclusion that the petitioner was aware of the pendency of the suit and the petitioner had agreed to vacate the building if the suit was decreed. The petitioner was not impleaded in the suit, filed by the 2nd respondent. Even if the petitioner was impleaded in the suit and a decree for possession was passed in the suit the petitioner could continue to be in possession till he is evicted in pursuance of an order of the Rent Control Court passed under S.11 of Act 2 of 1965. This is because it cannot be denied that the petitioner is a tenant of a building to which Act 2 of 1965 applies Nobody has a case that The petitioner is a trespasser. The petitioner was inducted in is a tenant by the landlord. The non obstante clause contained in S.11(1) has to be given its full effect. The rent control legislation is a self-contained statute and the rights and liabilities of the land lord and tenant are to be governed by its provisions and not by the provisions in the Transfer of Property Act or any other law. In other words, the provisions of Act of 1965 will override the provisions of the Transfer of Property Act as far as landlords and tenants of buildings to which it applies. In other words, the provisions of Act of 1965 will override the provisions of the Transfer of Property Act as far as landlords and tenants of buildings to which it applies. In Puwada Venkateswara v. C. V. Ramana (AIR 1976 SC 869) the Supreme Court has upheld the contention that the Andhra Pradesh Buildings (Lease and Rent Control) Act 15 of 1960 provided a procedure for eviction of tenants which was self-contained so that no recourse to the provisions of S.100 of the Transfer of Property Act, 1882 was necessary. In Lelitha v. Ayisumma (1977 KLT 587) a Full Bench of this Court has followed that decision. In the judgment the following passage from Brij Raj Krishna v. Shaw and Bros. (AIR 1951 SC 115) has been quoted. S.11 begins with the words notwithstanding anything contained in any agreement or law to the contrary' and hence any attempt to import the provisions relating the law of transfer of property for the interpretation of the section would seem to be out of place S.11 is a self-contained section and it is wholly unnecessary to go outside the Act for determining whether a tenant is liable to be evicted or not. and under what conditions he can be evicted." In view of the clear declaration of law in the above decisions. I do not think it is possible to hold that even if the lease is bit by lis pendens the petitioner can be sent out without resorting to S.11 of Kerala Act 2 of 1965. Then even if it is assumed without deciding the lease is hit by lis pendens can it be said that the petitioner is a trespasser. The petitioner was inducted in by the landlord of the building. The petitioner is in occupation of a building to which Kerala Act 2 of 1965 applies. The petitioner is not the owner. What is the remedy that is available to the landlord or anybody claiming through him He can be evicted only under S.11 of Act 2 of 1965. Till that is done he can continue to be in possession." 6. A Full Bench of this Court in Mohamed Mytheen v. Sreedharan (1976 KLT 919 FB) had occasion to consider the applicability of the non obstame clause in certain provisions of the Kerala Land Reforms Act. Till that is done he can continue to be in possession." 6. A Full Bench of this Court in Mohamed Mytheen v. Sreedharan (1976 KLT 919 FB) had occasion to consider the applicability of the non obstame clause in certain provisions of the Kerala Land Reforms Act. Govindan Nair, C. J., speaking for the bench observed as follows: "I would like to add that the rule of lis pendens is based on public policy. It contains a salutary principle that a transferee pendente lite shall not be in a better position than the judgment debtor who effected the transfer. I discern a purpose in this rule. It is meant for giving finality to judicial pronouncements. Apart from it there can be cases where a judgment debtor or debtor or defendant purposely and with a view to defeat the decree holder or the plaintiff transferred the property in the suit. The law provides that such transfer shall not prevail as against the plaintiff or the decree holder. This provision must apply with equal force to leases that are created during the pendency of the suit. For. a disgruntled defendant can well take up the attitude that if he cannot have the property let Home one else have it so that the plaintiff may be spited. This should not be allowed to follow unless the legislature has in very clear terms expressed unequivocally that the rule of Ms pendens shall not apply as has been done by enacting S.7, 7A and 7D. The general words 'notwithstanding any law" should not be taken to abrogate every rule of law which is intended to serve different purposes and which have no similarity and affinity to laws such as those introduced for agrarian reforms as in the case of the provisions of the Kerala Land Reforms Act. It would be prudent to construe the general words as intended to achieve the objects and purposes sought to be ensured by the Kerala Land Reforms Act In other words the non-obstante clause must not be so read as to abrogate every conceivable principle of law embodied in any statute whatever and for any reason whatever The approach I think must be to find out whether the law which is said to be abrogated by such non-obstante clause occupied the same field or dealt with the same object. Laws which fall under that category must certainly be abrogated by the non-obstante clause. This principle should not however be extended to other laws enacted on the basis of public policy meant for protection of interests and for finality of pronouncement of courts which have nothing to do with the objects and the purposes sought to be achieved by the statute I am therefore unable to accept the first contention that by the wording of Explanation.11A read with the S.127, if the occupation of the land and the dwelling house between the dates mentioned in the explanation is satisfied the occupant must be held to be a kudikidappukaran if the transfer which gave rise to such occupation was pendente lite." 7. In Joy v. Stephen Jacob (1984 KLT 72) the attention of this Court was not drawn to this Full Bench decision. The test enunciated by the Full Bench is to examine whether the law which is said to be abrogated by the non-obstante clause occupy the same field or deal with the same object. The Rent Control Act was enacted to regulate the leasing of buildings and to control the rent of such buildings in the State of Kerala. The Supreme Court in Nagindas v. Dalpatram (AIR 1974 SC 471) observed as follows: 11 The strain of the last World War. Industrial Revolution, the large scale exodus of the working people to urban areas and the social and political changes brought in their wake social problems of considerable magnitude and complexity and their concomitant evils. The country was faced with spiralling inflation, soaring cost of living, increasing urban population and scarcity of accommodation. Rack renting and large scale eviction of tenants under the guise of the ordinary law, exacerbated those conditions making the economic life of the community unstable and insecure. To tackle these problems and curb these evils, the Legislatures of the States of India enacted Rent Control legislations." This Court in Devassy v. Joseph (1969 KLT 541) held as follows: "The primary object of this class of legislation is not so much to adjust, on consideration of equity, the rent payable to a landlord by a tenant in particular cases as to limit the rights of the landlords as a class to increase the rent and obtain possession of premises. so as to ensure the peaceful life of the community by preventing indiscriminate eviction and rack-renting which also ends up in eviction". The obvious object of the legislation is to curtail the spiralling increase in rent and to give protection to tenants against arbitrary and whimsical eviction by landlords. As a special statute it replaces other laws which govern the subject and it is a complete code with regard to the rights and liabilities of the landlord and tenant-see Sivarama Menon v. Raghavan (1972 KLT 188) and Puwada Venkateswara v. C. V. Ramana (1976 SC 869). As observed by the Full Bench in Mohamed Mytheen v. Sreedharan (1976 KLT 919) the purpose of the rule of lis pendens is for giving finality to judicial pronouncements and contains a salutary principle that a transferee pendente life shall not be in a better position than the judgment-debtor who effected the transfer. According to us the rule of lis pendens is based on public policy which is an entirely different field. The non-obstante clause in the Rent Control Act should not be extended to other laws enacted on the basis of public policy meant for finality of pronouncements of courts which have nothing to do with the object and purposes sought to be achieved by the Rent Control Act. The requirement of a notice under S.106 of the Transfer of Property Act was held to be unnecessary in the case of a petition for eviction under the provisions of the Rent Control Act. Since notice under S.106 of the Transfer of Property Act is a condition for eviction of a lessee, we think that provisions in the Rent Control Act will abrogate that requirement. The rulings reported in Puwada Venkiteswara v. C. V. Ramana (AIR 1976 SC 869), Lalitha v. Ayissuma (1977 KLT 587) and Brij Raj Krishna v. Shaw and Bros. (AIR 1951 SC 115) relied on by this Court in Joy v. Stephen Jacob (1984 KLT 72) are not against the dictum of the Full Bench, in Mohammed Mytheen v. Sreedharan (1976 KLT 919). In that view we do not think that the contentions of the appellant based on Joy v. Stephen Jacob (1984 KLT 72) can be accepted. 8. In Delhi and London Bank Limited v. Ram Narain (ILR 9 Allahabad 497) the facts were as follows. In that view we do not think that the contentions of the appellant based on Joy v. Stephen Jacob (1984 KLT 72) can be accepted. 8. In Delhi and London Bank Limited v. Ram Narain (ILR 9 Allahabad 497) the facts were as follows. On 7th August 1884 one Ram Narain obtained a money decree against Ram Sarup and Piare Lal. On 12th August 1884 he attached the bungalows and caused them to be advertised for sale in execution of the decree. On 19th January 1885 the Delhi and London Bank obtained a decree upon their deed of 27th June 1884 and on 25th March 1885 attached the two bungalows in execution of their decree. On 23rd and 24th July the bungalows were sold by auction. An application was then made in execution by the Delhi and London Bank for payment of the whole amount of the sale proceeds. An objection was made by Ram Narain on the ground that a hypothecation of 27th June 1884 in favour of the bank was by reason of the injunction issued on the 12th June 1884 invalid and consequently the bank was not entitled to recover any part of the proceeds of the auction sale. The court allowed the objection. The bank brought the present suit against Ram Narain for cancellation of the above order dated 13th November 1885 and for recovery of the whole amount of the proceeds of the auction sale. The Allahabad High Court held that for violation of injunction, S.493 of the Code of Civil Procedure 1859 provided a penalty only and that there was no provision making the dealing with the property contrary to the terms of injunction illegal or void. However, in view of S.64 of the Code of Civil Procedure 1908 making all a private alienations of property after attachment void as against all claims enforceable under the attachment, the Allahabad High Court judgment also will not be of avail to the appellant. 9. In Ayissa Bibi Umma v. Aboobacker (1972 KLT 869) this Court had occasion to consider whether violation of an undertaking given to court will amount to contempt of court. 9. In Ayissa Bibi Umma v. Aboobacker (1972 KLT 869) this Court had occasion to consider whether violation of an undertaking given to court will amount to contempt of court. After examining the various aspects of the question, this Court distinguished between an undertaking given to the other party and an undertaking given to the court, and held that the breach of an undertaking given to the other party will not constitute contempt of court, but the breach of an undertaking given to the court will constitute contempt of court, In "The Law of Contempt" (1982 Edition) by Antony Arlidge and David Eady, the learned authors at page 269 state as follows: "Breach of undertaking to the court by litigants It was stated by Sir. C. Pepys M. R. in 1835 that an undertaking is equivalent to an injunction and. if violated, may be the subject of an application to the court. It should be noted, however, that an undertaking to the court to pay money is not outside the context of the law of contempt, like an order to pay money, since the obligation to the court imposed by an undertaking confers no right upon any other person, for example, to recover by means of levying execution of attaching a debt. The law has generally regarded the breach of an undertaking given to the court by or on behalf of a party to civil proceedings as tantamount to a breach of injunction, although the remedies were not always identical. For the purpose of enforcing an undertaking that undertaking, is equivalent to an order that is to say. an undertaking, if broken, would involve the same consequences on the persons breaking that undertaking as would their disobedience to an order for an injunction". 10. It is well settled that any contract or engagement having a tendency however slight to affect the administration of justice is illegal and void. In the "Law of Contract" by Cheshire and Fifoot (9th Edition) at Page 338, the learned authors after citing many examples of this rule deals with the consequences of illegality According to them, where the contract is illegal in the strict sense the consequences of invalidity are more sweeping than in any other cases, and the contract itself is illegal and void. The Madras High Court in Gurumurthi v. Perumal (AIR 1936 Madras 651) held that an undertaking given by a party on a petition for injunction amounts to an order of injunction. In Kamalakshi Amma v. Ouseph (1978 KLT 146) this court held that even though no attachment was effected, a third party who averted attachment of his movables by paying the decree amount under protest is entitled to move the execution court for the dismissal of the petition for attachment. In that judgment Narendran, J. observed as follows: 'But can it be said that a person who has no liability under the decree and whose movables are sought to be attached has no remedy before they are actually attached. When the threatened attachment is with Police help, no effective obstruction can be made by the person in possession of the movables Why should he suffer the humiliation of an attachment of his movables if he can satisfy the execution court that the movables are his and they cannot be attached in execution of a decree against somebody else. Any attachment can be averted by tendering the amount for the realisation of which the attachment was ordered. Payment of the amount under protest is the only way to avert an attachment when the Police is also at your doors to assist the Amin, Admittedly, there is no specific provision in the Civil Procedure Code empowering the execution court to pass an order for the return of the amount paid under protest to avert an attachment or for the cancellation of the order for attachment before making the attachment. But this does not mean that the execution court should be a silent spectator in matters like this. A court has a duty to preven the abuse of the process of court It should also see that justice is meted out. It is in such a situation that the inherent powers of a Civil Court under S.151 of the Civil Procedure Code should be exercised." No doubt in order to effect a valid attachment all the formalities will have to be complied with. Otherwise the provisions of S.64 of the Code of Civil Procedure may not be applicable. (See Muthiah Chetti v. Palaniappa Chetti (AIR 1928 PC 139) and Mariamma v. Ittoop Poulo (AIR 1952 Travancore-Cochin 159). Otherwise the provisions of S.64 of the Code of Civil Procedure may not be applicable. (See Muthiah Chetti v. Palaniappa Chetti (AIR 1928 PC 139) and Mariamma v. Ittoop Poulo (AIR 1952 Travancore-Cochin 159). So also it cannot be disputed that the provisions of S.52 of the Transfer of Property Act as such will not be applicable to the facts of this case, since this suit is only for the money due. However, there is considerable force in the submission of the learned counsel for the decree-holder that on the principles contained in that provision the judgment-debtor was not entitled to violate the terms of the undertaking and out of the two innocent parties, in case it is accepted for arguments sake that the appellant was an innocent party, the decree-holder who proceeded on the basis of the undertaking, has to be preferred by the court. 11. The learned Subordinate Judge held that the effect of filing an undertaking amounts to an attachment itself. The court accepted the undertaking and on that basis the petition for attachment was dismissed. The Judgment-debtor had undertaken in court not to alienate or transfer possession of the properties to any other person. We see no illegality in the finding of the lower court that the transfer in violation of such an under taking will not bind the decree-holder, even if the transfer is true and valid for other purpose The order on the basis of the undertaking was passed on 21-7-1977. The claim of tenancy was raised only on 13-7-1978. Under the circumstances, we confirm the finding of the lower court that the relief prayed for by the appellant is only to be disallowed. There is no merit in this appeal and it is accordingly dismissed. We direct delivery by removal of resistance on 15-10-1987 and post the application before the lower court for issuance of necessary orders on 12-10-1987.