KUNJU NAMBIAR Vs. VASUDEVAN NAMBOODIRIPAD

JUDGEMENT

(1.) DEFENDANTS in O. S. No. 271 of 1970 on the file of the munsiff of Pattambi (originally filed as O. S. No. 113 of 1970 on the file of the Munsiff of Ponnani) are the revision petitioners. The respondents are the plaintiffs in the suit.

(2.) THE sole point for consideration in this revision petition is whether the suit is liable to be stayed under S, 4 of the Kerala cultivators and Tenants (Temporary Protection) Act, 1970 (Act 2 of 1970) S. 4 of the said Act reads as follows: "4. Stay of suits, applications, etc. , for arrears of rent. (1) Notwithstanding anything to the contrary contained in any other law, or in any contract, or in any judgment, decree or order of any court or Land Tribunal, with effect on and from the commencement of this Act, (a) no suit or application or other proceedings for the recovery of arrears of rent in respect of a holding or part of a holding accrued due before the 1st day of May, 1968; or (b) no application for, or proceedings in, execution or a decree or order for the recovery of such arrears of rent or other application or proceedings incidental or ancillary thereto, shall lie in any court or Land Tribunal; and all suits, applications and other proceedings for recovery of such arrears of rent and all proceedings in execution of decrees or orders for recovery of such arrears of rent and other proceedings incidental or ancillary thereto, pending in courts or Land tribunals at the commencement of this Act, shall stand stayed. (2) All appeals against decrees or orders relating to arrears of rent in respect of a holding or part of a holding accrued due before the 1st day of May, 1968 and all revisions against decrees or orders relating to such arrears of rent, pending in any court or appellate authority at the commencement of this Act, shall stand stayed, and no court or appellate authority shall proceed with any such appeal or revision filed after such commencement. " THE suit is based on the mortgage deed dated 30 111956 executed by the defendants in favour of the plaintiffs. THE contention of the revision petitioners is that the suit, though based on the mortgage deed, is really one for arrears of rent in as much as the mortgage deed was executed by way of security for the arrears of rent that accrued due up to and for 1131 M. E. It is argued that in substance the claim is for arrears of rent, and, therefore, S. 4 of Act 20 of 1970 is attracted to the case.

(3.) ANOTHER decision that has been cited by the learned counsel appearing for the revision petitioners is a Division Bench ruling in beevi v. Pareed (1965 KLT,104 ). What came up for consideration before the division Bench in that case was whether the exemption provisions contained in s. 2 (c) (vii) of Act 31 of 1958 would be attracted to a case where a third party to a sale deed sued for the recovery of the unpaid purchase money for which a charge was created in favour of such third party. Raghavan J. , (as he was then) who delivered the judgment, while agreeing with the proposition that for the purpose of S. 2 (c) (vii) it is the category of the debt that matters, distinguished the facts of the cases of the two decisions cited, namely Amarnatha Menon v. Malathi Amma (1960 KLT. 10)and M. Varadaraja Perumal v. Paljnimuthu Gounder (AIR. 1941 Madras 118), from the facts of the case which was being considered by the Division Bench, and held that inasmuch as the balance money had ceased to have the character of unpaid purchase money, it would not fall within the exemption provisions contained in S. 2 (c) (vii) of Act 31 of 1958. This decision, in may opinion, does not in any way advance the position of the revision petitioners.