AYYAPPAN Vs. KARTHIAYANI AMMA

JUDGEMENT

(1.) The decree holder in a suit for redemption of a usufructuary mortgage is the revision petitioner. The revision arises from execution proceedings.

(2.) Respondents 4 and 5 in the petition are persons claiming to be tenants under the mortgagee-1st judgment debtor. These respondents were parties to the suit.

(3.) In the counter, respondents 4 and 5 have raised a contention that they cannot be evicted without recourse to the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965. The court below relying on the decision of this court in Kumaran Nair v. Maniappan Pillay 1971 KLT 269 held that respondents 4 and 5 cannot be evicted as they are tenants directly under the decree holder. This decision however is not applicable to the facts of the case particularly because, admittedly the persons who claimed tenancy in the said case, were not parties to the compromise based on which the decree for eviction was passed whereas here respondents 4 and 5 are parties to the decree in execution Whatever that be, in view of the decision of the Supreme Court in M/s. Schalmal Parasram v. Smt. Ratnabai and others AIR 1972 SC 637 the case of respondents 4 and 5 that they cannot be evicted without recourse to the provisions of the Kerala Buildings (Lease and Rent Control) Act is liable to be rejected. The Supreme Court in identical circumstances has held thus: