SANKARANUNNI VARIYAR Vs. AYYAPPAN EZHUTHACHAN

JUDGEMENT

(1.) C. R. P. No. 501 of 1982 arises out of an application under S.5 of the Kerala Payment of Arrears of Rent in Instalments Act, 1979, Act 29 of 1979 (hereinafter referred to as the 'Act'). The legal representatives of the decree holder in O.S. NO. 208 of 1964 are the revision petitioners. The decree holder in that case obtained a decree for arrears of rent for the period 1134 to 1139 M.E. The final decree was passed on 1-9-1965. In execution the judgment debtors tenancy right over the property was brought to sale and sold and it was purchased by the decree holder himself. The sale was confirmed on 15-11-1966. Thereafter, E.A. No. 125 of 1967 was filed for getting delivery of property and in pursuance to an order thereto decree holder obtained possession of the property in January , 1967, when the Kerala Payment of Arrears of Rent in Instalments Ordinance, 1979 (10 of 1979) came into force, the judgement debtor filed an application under S.5 of the said Ordinance for restoration of possession of the property. The Ordinance was later replaced by Act 29 of 1979. It was alleged by the judgment debtor who is the respondent herein that the holding in his possession has been sold in execution of a decree for arrears of rent and that he was dispossessed before the commencement of the Ordinance and accordingly he is entitled to restoration of possession of the holding by deposit of the amount mentioned in S.5.

(2.) To the above application the legal representatives of the decree holder (the decree holder having died in the meantime) filed an objection contending that the final decree in the above case was passed on 1-9-1965, that the sale was confirmed on 15-11-1966 and that they got delivery of the property in January, 1967. They contended that the application itself is not maintainable as there was ho arrears of rent due as on 01/01/1970 and outstanding at the commencement of the Act or the Ordinance, namely 19th day of July, 1979 and as such the judgment debtor is not entitled to get restoration of possession. It was also contended by them that after they obtained possession of the property in 1967 in the wake of Act 9 of 1967 the judgment debtors tried to trespass upon the property and thereupon the decree holder filed O.S. No. 175 of 1967 for injunction. That suit was decreed and the decree was confirmed in appeal. On the above grounds it was contended by them that the judgment debtor is not entitled to any relief under S.5 as the conditions mentioned in S.5 are not satisfied and that the property was not sold for arrears of rent referred to in S.3 of the Act.

(3.) The execution court overruled the objection raised by the legal representatives of the decree holder and it was held that S.5 is squarely applicable. The execution court further held that the decree was for arrears of rent and there was a sale in execution of that decree before the commencement of the Act which entities the judgment debtor for an order for restoration of possession under S.5 of the Act. It is this order that is challenged by the legal representatives of the decree holder in the C.R.P.