RAMACHANDRAN NAIR Vs. MARIAM OUSEPH

JUDGEMENT

(1.) In this case the decree holder's application for delivery of possession of the decree schedule property was dismissed by the execution court on the ground that execution proceedings have to be stayed under S.4 of the Holdings (Stay of Execution Proceedings) Act VIII of 1950 and that the decree holders have not made out any of the grounds mentioned in proviso (a) of that section for taking the case out of the operation of S.4. On appeal by the decree holders, the District Court confirmed the order of the execution court. The decree holders have therefore filed this second appeal, and the only contention urged on their behalf in this Court is that Act VIII of 1950 does not apply to this case on account of the provision in clause (c) of S.3 of the said Act. I am of opinion that this contention is sound and ought to prevail.

(2.) The decree schedule property in this case consists of a house and a rather extensive garden in which that house stands. By the lease deed sued upon, the house and the garden were leased together as a single unit, and from the lease deed and the surrounding circumstances it is abundantly clear that the house and the garden were being held together, the garden being considered to be, and being in fact, only land appurtenant to the house. Clause (c) of S.3 of the Holdings (Stay of Execution Proceedings) Act VIII of 1950 provides that the said Act shall not apply to "buildings rented out including houses, shops or warehouses and the sites thereof together with the gardens or lands appurtenant thereto". This clause is exactly similar to clause (c) of S.3 of the Cochin Verumpattomdars Act VIII of 1118 which came up for consideration before a Division Bench of this Court in the case reported in 1951 KLT 258 , Kalikutty v. Krishna Iyer. Clause (c) of S.3 of the Act VIII of 1118 provides that the said Act shall not apply to "leases of any building owned by a landlord including a house, shop or warehouse and the site thereof, together with the garden or land appurtenant thereto. In 1951 KLT 258, Koshi, J. (as the present learned Chief Justice then was) has said:-

(3.) In the result the Second Appeal is allowed with costs throughout. The orders of the courts below are set aside and the decree holders are allowed to recover possession of the decree schedule property in accordance with the terms of the decree.