NARAYANI Vs. MAMACHI UMMA

JUDGEMENT

(1.) The suit out of which this Second Appeal has arisen was for resumption of land demised to the defendants-tenants on the ground that the same was required bona fide for the maintenance of the landlord. Though the defendants contested the claim, they subsequently compromised with the plaintiff and agreed to surrender the land to him, and a compromise decree was accordingly made in the case. The landlord-decree holder assigned the decree to the 1st respondent who thereupon sought to execute the decree. Objection was taken that the decree was personal to the original decree holder and that therefore the assignee could not execute the same. Both the courts below repelled the contention on the ground that the decree is not based on the bona fide requirement of the landowner, but on the consent of the defendants for the landlord's recovery of property.

(2.) The proposition which the 2nd defendant contends for in this second appeal is that the landlord's rights to resume the holding was then circumscribed by certain rigid conditions imposed by the Malabar Tenancy Act and therefore the decree was personal to the plaintiff only, who satisfied those conditions and would not enure to any other person. Counsel placed reliance on the provisions of the Malabar Tenancy Act prohibiting institution of a suit for eviction of tenants by landlord's transferee and providing for restoration of possession to the tenant in case of assignment by landlord after the resumption of the property. But, no provision, either in the Malabar Tenancy Act. or in any other statute, prohibiting transfer by the landlord of a decree for resumption of land from a tenant was pointed out to me. The contention is that the scheme of the Malabar Tenancy Act, conferring a fixity of tenure on tenants, had restricted their eviction to very narrow limits; and therefore, decrees for eviction should not be held assignable. The fact that the landlord was prohibited from transferring the property resumed from a tenant did not mean that the prohibition extended to transfers before actual resumption. It may be that the absence of such a provision to prohibit transfers of decrees for eviction of tenants was an unforeseen lacuna in the enactment; even then it is not for the judiciary to supply the gap. "We cannot aid the Legislature's defective phrasing of the Statute" observed Lord Brougham, in Crawford v. Spooner (4 M. I. A. 179, 187). "We cannot add, and mend, and, by construction make up deficiencies which are left there." The decree in this case does not indicate that the eviction ordered therein should only be for the personal benefit of the decree holder or could only be for purposes of bona fide cultivation of the original plaintiff. It is a simple decree for recovery of property. The executing court is bound to give effect to the terms of the decree, beyond which it cannot go. It is well settled that the executing court must take the decree as it stands. Unless there be any ambiguity in the terms or provisions of the decree, it is not for the executing court to construe the decree or to discover the spirit behind the decree from the reasons that led its making. As cautioned by our Supreme Court in Ramaswami v. Kailasa Thevar (AIR 1951 S. C. 189) the executing court should not, under the guise of interpretation, make a new decree for the parties. Decrees, as documents of title to properties, are freely transferable under the general law. Taken as a simple decree for recovery of landed property, the instant decree was transferable, and the assignee entitled to execute the same in the absence of a prohibition by law. It may appear hard to the tenant to say that he can regain the holding if the decree holder, first evicted him and then assigned the property to another, but not if the decree holder first assigned the decree to another and then the assignee evicted him out of the holding. But hard cases cannot make bad law. I would therefore hold that the decree in the instant case is transferable and the transferee entitled to execute the decree according to its terms. It then follows that the judgment of the court below is correct. The Second Appeal fails and is dismissed.

(3.) This appeal was once heard on 10-3-1961, and on the ground that the decree was between parties in agrarian relation, the matter was remitted to the executing court for a fresh disposal in accordance with the provisions of the Agrarian Relations Act, IV of 1961. It is by a petition for review that the respondent intimated me that delivery of the concerned property had already been effected in execution on 20-12-1955. Finding that the provisions of Act IV of 1961 will not apply to properties resumed lawfully by the landlord in 1955, I granted the review and reheard the appeal to-day. For the aforesaid laches of the respondent, I disallow his costs in this appeal.