GOVINDA MENON Vs. VARKEY

JUDGEMENT

(1.) Two important questions of law arise in this appeal: (1) If, in proceedings pending on the date of commencement of the Kerala Land Reforms (Amendment) Act, 1969 (Act 35 of 1969) (hereinafter referred to as the Amending Act), which amended the Kerala Land Reforms Act, 1964 (Act I of 1964) (hereinafter referred to as the Principal Act), a tenant dispossessed of his holding in execution of a decree for arrears of rent, had claimed restoration of possession thereof, under sub-s.(2) of S.6 of the Kerala Stay of Eviction Proceedings Act, 1967 (Act IX of 1967) (hereinafter referred to as the Temporary Act), whether the application for that relief is to be pursued under the provisions of that Act or under the provisions of the Kerala Land Reforms Act, 1964, as amended by Act 35 of 1969 (hereinafter referred to as the Amended Act); and (2) whether for the purpose of sub-s.(2) of S.6 of the Temporary Act, a deposit accompanying an application under S.47 or under O.21 R.90CPC., not withdrawn by the decree holder, would satisfy the requirements of deposit of purchase money together with interest in terms of that section of the temporary Act; and whether deposit of purchase money made for the purpose of sub-s.(2) of S.6 of the Temporary Act would be sufficient for the purpose of S.13B of the Amended Act, if the application is to be continued and disposed of under that Act. It is because of the importance of these questions of law and in view of the apparent conflict between the decisions of this court in Parameswaran Nambudiri v. Kalyani ( 1974 KLT 67 ), A.S.A. No. 19 of 1976 and CRP. Nos. 1090 and 109t of 1972 on the one hand and OP. No. 3872 of 1970 and CRP. No. 261 of 1975 on the other, that the matter has been referred to the Full bench.

(2.) The short facts relevant for the purpose of disposal of the appeal could be stated as follows: The appellant in the second appeal is the respondent in S.A. No. 992 of 1967 in OS. No. 41 of 1962 on the file of the Munsiff's court, Irinjalakuda, who is respondent No. 1 in AS. No. 62 of 1975 on the file of the Subordinate Judge's Court, Irinjalakuda. In execution of the decree in OS. No. 41 of 1962 for arrears of rent, the appellant herein brought to sale the decree scheduled property and purchased it himself. In course of time, the appellant took delivery of the property.

(3.) Respondents 1 and 8 and the predecessor in interest of respondents 2 to 7 herein, made two applications: (1) under S.47 CPC. and (2) under O.21 R.90 CPC., E. A. Nos 321 of 1966 and 166 of 1966 respectively; attacking the court sale in favour of the appellant herein. The respondents herein deposited a sum of Rs. 1580 32 in Court, which they claimed would satisfy the decree. By order dated 25-7-1966, the executing Court allowing E. A. No. 321/66 and 166/66 set aside the sale. There was a direction that the amount deposited by the respondents herein was to be withdrawn by the appellant herein in satisfaction of the decree. The matter was taken up in appeal by the appellant herein in AS. Nos. 44 and 46 of 1966 on the file of the Subordinate Judge's Court, Irinjalakuda. Both the appeals were dismissed on 1-8-1966, confirming the orders of the execution Court. The appellant herein filed S. A. No. 957 of 1966 and 964 of 1966 against the said decisions. While the said appeals were pending, the Temporary Act was enacted, S.6 thereof provided for restoration of possession of the properties sold in certain cases on condition that the persons contemplated by that section deposit the purchase money together with interest at the rate of 6 percent per annum in Court within six months of the commencement of the Act and apply to the Court for an order setting aside the sale. The respondents herein made an application stating inter alia that the amount already deposited by them in connection with their applications, EA. No. 321 of 1966 and 166 of 1966 respectively, under S.47 and O.21 R.90 CPC. would satisfy the requirements. The applicant herein resisted the application contending inter alia that the application was not maintainable; that the deposit of purchase money and interest was a condition precedent to the entertaining of the application and that in any event, the deposit made in connection with the applications under S.47 and O.21 R.90 CPC. could not be treated as deposit for the purpose of satisfying the conditions of the provisions of a statute like the Act in question and that the amount in deposit was insufficient for the purpose of the Act. The second appeals filed by the appellant were allowed by this Court by judgment dated 30-10-1969. By order dated 10-4-1975, the executing Court held that there was no deposit as contemplated under S.6 of the Act, and in that view dismissed the application. The lower appellate Court, however, allowed the appeal filed by respondents 1 to 7 herein and allowed the application under S.6 of the Act. It is against the decision of the first appellate Court that the appeal has been preferred.