GANGADHARAN NAMBIAR Vs. THAMBAYI

JUDGEMENT

(1.) This second appeal is by the 6th respondent in a petition under S.6 of Act 9 of 1967 to set aside a sale under a decree for arrears of rent. The landlord filed O. S.1804/59 against one Ramankutty Nambiar for arrears of rent for the year 1134 and in execution of the decree brought the leasehold right to auction and one Kunhirama Marar purchased the property for Rs. 255/- on 10-6-1963. He took delivery of the property on 30-7-1964, after removal of the obstruction put forward by respondents 1 to 3 in this second appeal. These respondents and respondents 4 and 5 had taken an assignment of the leasehold right in 1960 from the tenant. When Act 9 of 1967 was passed respondents 1 to 3 filed a petition under S.6 of that Act to set aside the sale on deposit of the sale amount. Later they did not want to prosecute the petition and so respondents 4 and 5 who were on the party array as respondents applied for transposition as petitioners and that was allowed. This Kunhirama Marar opposed the petition to set aside the sale stating that the petition filed under S.6 by the assignees of the tenant is not maintainable, that the order removing the obstruction filed by respondents 1 to 3 herein before delivery of the property is a bar to the maintainability of this petition, that he has effected valuable improvements in the property and that the petition is abated for failure to implead the legal representatives of the tenant who died pending the petition. Subsequently Kunhirama Marar assigned a portion of the property to the appellant herein. The appellant got himself impleaded as an additional respondent in the main petition and adopted the contentions of Kunhirama Marar. He further contended that the petition under S.6 of Act 9 of 1967 is not maintainable since all the persons interested in the tenancy right did not join in filing the petition and that the transposition of respondents 4 and 5 as additional petitioners does not in any way enable them to continue the petition filed by respondents 1 to 3 and to make use of the deposit made by the latter to set aside the sale. The Trial Court did not accept any of the contentions put forward by Kunhirama Marar and the present appellant, set aside the sale and allowed recovery of possession of the property. The appeal filed by the appellant was also dismissed and so he has come up in second appeal.

(2.) Before the appeal is considered on the merits it is necessary to dispose of a preliminary objection raised by the respondents' counsel that the appeal and second appeal from the order setting aside the sale under S.6 of Act 9 of 1967 is not maintainable. According to him, Act 9 of 1967 does not confer any right of appeal against the order passed thereunder. The appellant's counsel in answer stated that the order passed under S.6 of the Act is an order setting aside a sale held in execution of a decree and therefore is an order under S.47 C.P.C. and amounts to a decree within the meaning of the definition of 'decree'. The answer of the appellants is well founded. The sale was held in execution of the. decree in O.S. No. 1804 of 1959. The petition to set aside that sale, though filed under S 6 of the Act, is a petition to vacate the sale held in execution. The order of satisfaction of the decree passed on the confirmation of the sale is sought to be vacated and the property taken "delivery of by the auction purchaser in execution of the decree in that case is sought to be redelivered after setting aside the sale. There are matters relating to execution, discharge and satisfaction of the decree and the dispute though is now between the auction purchaser and the assignees of the defendant, comes within the scope of S.47 inasmuch as an auction purchaser is also deemed to be a party for the purpose of that Section. Hence the order amounts to a decree for the purpose of appeal and second appeal. Further, even viewing that petition to set aside the sale as an independent petition, that being one allowed to be filed, in the court as constituted under the Civil Courts Act, the provisions of the CPC., since they are not expressly or impliedly excluded to a proceeding under the Act, will apply to the case. The order under attack conclusively determines the rights of the parties as provided for in the definition of a 'decree' in S.2(2) of CPC. and consequently the appeal and second appeal are maintainable. Hence the preliminary objection is overruled.

(3.) Under S.6 of Act 9 of 1967 a tenant dispossessed of a holding after 1st day of April, 1964, in execution of a decree and sale of the holding is entitled to restoration of possession of the holding if he deposits within six months of the Act the purchase money together with interest at the rate of 6% per annum in court and apply to the court to set aside the sale and restore possession. of the holding. Who is a tenant is not defined in the Act. But, S.2 provides that that term shall have meaning assigned to it in the Kerala Land Reforms Act 1 of 1964. In 1967 the definition of 'tenant" in Act 1 of 1964 was in the following terms:--