SUBBIAH PILLAI Vs. GOPALA PILLAI

JUDGEMENT

(1.) This is an appeal by the 2nd defendant against an order refusing immunity from eviction under the decree in the suit.

(2.) The admitted facts relevant for the disposal of this appeal are thus:On Medam 11,1122,the plaintiff had let the suit property,being a compound with two buildings,for 6 years to the 1st defendant.The same day,another agreement was also entered into under which the 1st defendant undertook to put up two other buildings on the property in three months 'time with funds to be supplied by the plaintiff.The rents fixed under the lease were Rs.10/ - p.m.for the compound and Rs.75/ - p.m.for 3 months and thereafter Rs.250/ - p.m.for the buildings.The 1st defendant put up one building and the ground floor of another,but not the upper floor of the latter;he paid rents as stipulated for some months;and on Karkatakam 1,1124,assigned his interest under the lease to the appellant 2nd defendant,even though there was a covenant,against assignment in the lease deed.Based on the breach of covenant,the plaintiff instituted this suit for eviction of the defendants from the buildings and the compound and other reliefs.It was decreed allowing eviction and recovery of arrears of rent at Rs.260/ - a month from Meenam 1124 from the defendants.The 2nd defendant's appeal,A.S.No.741 of 1958 in this Court,ended in a compromise with plaintiff in the following terms:

(3.) The compromise was accepted by Court and decree passed on July 31,1961.Thereafter the decree holder moved an execution petition which happened to be dismissed for default.On January 7,1963,he filed Execution Petition No.14 of 1963,when the 2nd defendant claimed immunity from eviction under S.11 of the Kerala Buildings(Lease and Rent Control)Act,XVI of 1959.The court below,on an appreciation of the terms of the compromise and the definition of a tenant in the Rent Control Act,held him not a tenant,and allowed execution to proceed.It is against that order that this appeal has been preferred.