VISHNU BHATTATHIRIPAD Vs. POULO

JUDGEMENT

(1.) The decree holder is the appellant. The appeal is from ah order in execution rejecting the petition of the decree holder for recovery of possession of the decree schedule property. The suit was on the basis of a lease deed for recovery of possession of property with arrears of rent. During the pendency of the suit a receiver was appointed for the property. After the suit was decreed the decree holder applied for recovery of possession of property from the receiver. The court below refused this prayer on the ground that the decree came within the purview of Act VIII of 1950 (The Holdings Stay of Execution Proceedings Act) The appeal is from that order.

(2.) One of the points argued on behalf of the appellant is that the judgment debtors have failed to pay the rent of the holding which accrued due after the commencement of the Act and that they are, therefore, not entitled to the benefit of the Act. No such ground was taken by the decree holder in his execution application. Neither is the ground taken in the appeal memorandum. In view of the fact that the property has been in the possession of the receiver even before the date of the commencement of the Act we do not think that the proviso to S.4 of the Act will apply to this case. There is, therefore, no substance in this contention,

(3.) The main argument advanced on behalf of the appellant is that Act VIII of 1950 offends the provisions of the Indian Constitution and that it is, therefore ultra vires. The Act was impugned on three grounds (1) that it offends Art.14 of the Constitution relating to equality before law; (2) that it offends Art.19(1)(f) relating to the right to hold property; and (3) that it comes within the purview of Art.254 which prohibits the legislature of a State to make any law which is repugnant to any provision of law made by Parliament.