MADHAVA KAIMAL Vs. KRISHNA PILLAI

JUDGEMENT

(1.) This is a matter arising in execution. In accordance with the provisions of the decree, the decree holder sought recovery of possession of B schedule item No. 1. This was objected to by the respondents on the ground that the delivery of possession of the property has to be stayed under S.4 of the Act VIII of 1950. Upholding this contention the court below by the order under appeal stayed the delivery of possession of the property. The decree holder has therefore come in appeal.

(2.) The suit was for setting aside certain alienations including the lease in favour of the 11th defendant and for recovery of possession of the properties. The Trial Court found that the lease executed in favour of the 11th defendant is invalid, set it aside and ordered recovery of possession of B Schedule item No. 1 on payment of the value of improvements. In spite of the fact that the lease was set aside and recovery of the property was ordered under the decree the learned Judge held that S.4 of the Act VIII of 1950 applies and stayed delivery of possession of the property. We are unable to agree with the view taken by the learned Judge. The transaction contemplated in the definition of the term holding in the Act relates only to a legally valid transaction by which a leasehold right in the property is created and possession of the property is transferred. It is the execution of a decree in a suit for the recovery of possession of such a holding, so far as it relates to the delivery of possession of the holding, that is directed to be stayed under S.4 of the Act. The Act has no application to cases where property was wrongfully alienated by the execution of a lease and a decree for recovery of the property setting aside the alienation was obtained. When the lease in favour of the 11th defendant was found to be invalid and was set aside he cannot be deemed to be in possession of the property as a lessee. Act VIII of 1950 is not applicable to the present case. The order under appeal staying the proceedings in execution in respect of the recovery of possession of B schedule item No. 1 is therefore not sustainable. We set it aside and allow the appeal with costs. The decree holder will be at liberty to execute the decree and recover possession of B schedule item No. 1 as per the terms of the decree.