ABDUR REHUMAN VAIDYAN Vs. ABUBAKER KUNJU

JUDGEMENT

(1.) THIS second appeal is from the order of rejection made in C. M. P. 7468 of 1958 on the file of the Munsiff's Court, Nedumangad and confirmed in A. S. 915 of 1958 on the file of the District Court, Trivandrum. CMP. 7468 of 1958, though numbered as if it were a separate proceeding, was, in truth, an objection filed by the present appellant to the execution of a decree he had suffered for arrears of rent and mesne profits in respect of property he had possessorily mortgaged to the respondent and taken back on lease. The suit, o. S. 301 of 1952 on the file of the Munsiff's Court, Nedumangad, brought on the lease back, was for eviction, arrears of rent, and future mesne profits. Although this is not stated any where in the present proceedings, execution was being levied in E. P. 130 of 1957, and the prayer sought in CMP. 7468 was a dismissal of the E. P. on the score that the appellant was an agriculturist entitled to the benefits of Act XXXI of 1958. It would appear that the appellant filed another application, CMP. 8621 of 1958, also on the execution side, in which he said that he was an agriculturist, that he was entitled to an amendment of the decree under S. 7 of Act XXXI of 1958, that he was prepared to adduce evidence under S. 9 of the Act, and that therefore the court should declare that the respondent was not entitled to execute his decree. What purpose this application was designed to serve it is difficult to understand. The first court seems to have thought that it was an application under S. 7 of Act XXXI of 1958. But, seeing that it was made on the execution side, and that there was no prayer for an amendment of the decree and no averment whatsoever as to how and on what basis the decree was to be amended, I do not think that it can be regarded as such an application. It was only just another meaningless application, merely reiterating the appellant's objection to the execution, and since it was rejected by the first court, and that rejection is not the subject-matter of the present appeal, nothing more need be said about it.

(2.) THE first court mistakenly thought that the present application, CMP. 7468 of 1958, was an application for stay of further proceedings in the execution; and both courts, doubtless misled by the arguments advanced before them by both sides, have embarked on an altogether irrelevant discussion as to whether S. 9 of Act XXXI of 1958 can apply to a transaction which has resulted in a decree, and, coming to the conclusion whether right or wrong I need not stop to consider, excepting to say that the transaction which here resulted in a decree was the lease back and that it is difficult to see how this lease by itself could be a transaction of debt that it cannot, have rejected the application. Obviously, the provision of law that is relevant is S. 11 (6) of the Act by which a possessory mortgage and a lease back together make a simple mortgage. And the simple question is whether, when there has been a decree on the lease back, the judgment-debtor can ask the executing court to do the transmutation demanded by the section. I should think not, for the section does not say that, notwithstanding that there is a decree for arrears of rent on such a lease back, only the interest, at 5% per annum on the sum advanced under the mortgage, can be recovered. Hence, so long as the decree stands, and has not been amended on application made for the purpose under S. 7 read with S. 11 (6) of the Act, what is due under the decree is arrears of rent, something that is taken out of the definition of "debt" in S. 2 (c) of the Act by the exclusion in sub-clause (ix) thereof. Unless expressly authorised to do so, an executing court cannot go behind the decree and embark on an inquiry as to whether the liability under the decree is other than what the decree itself declares it to be. Here the decree declares it to be arrears of rent I am for the moment ignoring that part of the decree which relates to mesne profits subsequent to the suit and, so far as arrears of rent are concerned, the liability is not a debt and does not therefore come within the purview of the Act. But, in so far as the liability for mesne profits is concerned, the liability is undoubtedly a debt within the meaning of the Act, the appellant being undisputedly an agriculturist although there is no express finding to that effect, the respondent concedes this and the appellant is entitled to the benefits of the Act.