ITTY ACHAMMA Vs. KOCHUTHUPPU ITTIAVIRA

JUDGEMENT

(1.) THE second Defendant is the Appellant.

(2.) The appeal relates to an order in execution. The suit was for recovery of possession of property on the basis of a lease and for, arrears of rent. The Defendants contended that the lease was irredeemable. That contention was accepted by the trial Court, and in the decree passed on 25 -3 -1944 the prayer for recovery of possession was disallowed. Both parties appealed from that decree and the District Court disposed of both the appeals on 17 -7 -1945 holding that the property was redeemable and giving the Plaintiff a decree for recovery of possession of the property with arrears of rent and future rent. The case was remanded to the trial Court for the trial of issues relating to value of improvements; and other matters which had not been considered by that Court. The second appeal filed in the High Court from this decision was dismissed on 31 -11 -1123. Subsequently the trial Court passed its final decree on 15 -12 -1949. The value of improvements was found to be Rs. 220 -12 -6. In appeal filed by the second Defendant from this decree the District Court enhanced the value of improvements by Rs. 215. The District Court decision was on 21 -8 -1951. Even before the appeal was disposed of the decree -holder filed an execution petition on 17 -6 -1950 for recovery of possession of the property and for realisation of arrears of rent after setting off the value of improvements. Notice was issued to the Defendants on this petition. Subsequently, execution was stayed by the order of the District Court. The present execution petition was filed on 28 -3 -1952 for recovery of possession of property and for realisation of arrears of rent and future rent after setting off value of improvements. Notice was ordered to the Defendant with regard to the prayer for set off Notices were served by affixture as Defendants 1 and 2 refused to accept the same. No objections were filed with regard to the prayer for set off and on 28 -5 -1952 the Court allowed the set off and posted the execution petition to 5 -6 -1952 for further steps. On that day the Court ordered delivery of property to be effected on 20 -6 -1952 and notice of delivery to be returned turned unserved and that issued to the second Defendant was served by affixture as she refused to accept the same on 17 -6 -1952 fresh notice was ordered to the first Defendant to be returned on 20 -6 -1952 and delivery was adjourned to 23 -6 -1952. On 18 -6 -1952 the second Defendant applied for chalan to deposit the rent for the years 1950, 1951 and 1952. Chalan was ordered to be issued on 20 -6 -1052, and the amount was deposited on 20 -6 -1952. On the same day, the second Defendant filed objection to delivery of possession of the property claiming the benefit of Act 8 of 1950. On 2 -7 -1952 the second Defendant on the ground that there was wilful and unjustifiable default on her part in paying the rent of the property which accrued due after the commencement of Act 8 of 1950. In appeal filed by the second Defendant from this order the District Court also took the same view. Hence this second appeal. The only question for consideration in this second appeal is whether there has been wilful default on the part of the second Defendant in paying the rent of the property that accrued due after the commencement of Act 8 of 1950. Reliance is placed by the Appellant on the Full Bench decision of this Court in -'Sanku Krishnan v. Hari Prabhu Govinda Prabhu, AIR 1952 TC 333 (FB) (A). What was held in that case is this:

(3.) THE second appeal is, therefore, dismissed with costs.