GOPINATHA PANICKER Vs. JOSEPH

JUDGEMENT

(1.) This is an appeal by leave from the decision of Madhavan Nair, J., in S.A. No. 33 of 1957, setting aside the decision of the lower appellate court and restoring that of the execution court. Shorn of unnecessary details, the facts are these. The decree holder who is the appellant before us obtained a decree for redemption of item No. 3 in the schedule annexed to the decree. When he sought eviction the respondent resisted contending that a plot of 7 cents in item No. 3 was wrongly included in the decree and that the same should not be delivered to the decree holder. The latter agreed to take delivery of the remaining area pending decision of this dispute and he got delivery of possession of the remaining area on 16th Kumbham 1122. The dispute regarding the 7 cents was decided in favour of the appellant on 23rd November 1949. Thereafter he applied for delivery of the said plot. The respondent objected contending that it was a holding within the meaning of the term as defined in Act VIII of 1950. The execution court upheld the objection but on appeal the lower appellate court reversed the order, holding that delivery could be effected. This decision was set aside in Second Appeal No. 33 of 1957.

(2.) It is urged on behalf of the appellant that the relation of landlord and tenant which subsisted between the appellant and the respondent came to an end when the latter drew or caused to be drawn from court the amount deposited by the appellant as the price of redemption. The argument may be sound according to the Transfer of Property Act but not under Act 1 of 1964 which contains a provision similar to Act VIII of 1950. S.132 of Act 1 of 1964 is the repealing section and sub-s.3(a) of the section provides:

(3.) The result is that the appeal fails and is dismissed in the circumstances we direct the parties to bear their costs.