EAPEN MATHEN Vs. NARAYANA IYER KRISHNA IYER

JUDGEMENT

(1.) DEFENDANT 3 is the Appellant. The matter arises in execution. When the decree -holder sought to execute the decree, objection thereto was taken by Defendant 3 in two, civil miscellaneous petitions filed by him, C.M.P. No. 3994 dated 3 -7 -1951 and C.M.P. 5050 dated 4 -8 -1951 In C.M.P. No. 3994 of 1951, Defendant 3 contended that he is in possession as lessee of the property and, therefore, the delivery of the property has to be stayed as provided for in Act 8 of 1950. This objection was overruled by the learned Judge on the ground that Act 8 of 1950 does not apply to the present case.

(2.) IT is contended that the lease executed by the Plaintiff in favour of his mortgagors on the basis of which the suit was brought for recovery of possession is not a holding as defined in the Act. We are unable to agree with this contention. We are clear that the suit is one for recovery of possession of a holding as defined in Act 8 of 1950. This question is concluded by the Full Bench decision reported in - 'Sanku Krishnan v. Govinda Prabhu, AIR 1952 TC 333 (P.B.) (A). The fact that it was the mortgagee that executed the lease will not make any difference as long as the mortgage subsists and the suit is by the mortgagee for recovery of possession of the properties leased by him. The matter may be different when the mortgagor brings the action for redemption of the properties against the mortgagees with the lessees of the mortgagees on the party -array. That will be a suit for redemption of the mortgage and not one for recovery of a holding as defined in the Act. But when the mortgagee sues for recovery of the property on the basis of a lease executed by him the property sought to be recovered to such an action is a holding as defined in the Act. Therefore we are of the view that the contention, of Defendant 3 that recovery of the properties has to be stayed is sustainable. We uphold that contention and direct that the recovery of possession of the properties will be stayed as enjoined under Act 8 of 1950.

(3.) THUS we uphold both the contentions raised by the Appellant and the appeal is allowed with costs in both courts.