V K KRISHNA MENON Vs. OUSEPH THOMAN

JUDGEMENT

(1.) THE question which arises for decision in this civil miscellaneous appeal is whether the appointment of a receiver in a suit for recovery of arrears of rent made before the enactment of the Kerala Stay of eviction Proceedings Ordinance, I of 1957, is liable to be cancelled by reason of the mere enactment of the said Ordinance and the subsequent Kerala Stay of eviction Proceedings Act, I of 1957

(2.) THE facts are as follows: THE defendant is in possession of the suit property under a lease deed which provides for payment of rent, not in money, but in cocoanuts, at certain stipulated times, and it is admitted that for arrears of rent due before the Malabar year 1125 a decree has been passed against him in O. S. No. 20 of 1125 of the Anjikaimal District court and another decree has been passed against him in O. S. No. 184 of 1951 for arrears of rent due for the years 1125 and 1126. On 13-10-1955 A. D. , the appellant in this civil miscellaneous appeal filed a third suit against the defendant for balance of arrears of rent due in respect of the Malabar years 1127 to 1130. That suit was first filed in the Anjikaimal District Court as O. S. No. 174 of 1955 and after the establishment of the Subordinate Judge's Court of Ernakulam, it was transferred to the Subordinate Judge's Court and re-numbered as O. S. No. 59 of 1957. THE balance of arrears claimed in that suit and interest thereon amounted to Rs. 9,389 -12-7. On the date of the institution of the suit itself the plaintiff applied for the appointment of a receiver for the suit property alleging that a very large amount was due to him as per the two earlier decrees and i account of the arrears of rent claimed in the present suit, and the value of the lease-hold interest was less than the arrears of rent due to him and, with a view to defeat and defraud him, the defendant was not attending to the maintenance work in the property and causing deterioration to it and was also taking the whole yield without paying any rent, and that in order to preserve the property and also protect the interests of the plaintiff and enable him to recover the amounts due to him it was essential that a receiver should be appointed. On this application the District Judge passed an order on 14-1-1956 directing the defendant to deposit certain amounts in court and stating that a receiver would be appointed in case of default of such deposit. THE defendant made some deposits and then defaulted and so, on 7-6-1956, the District Judge appointed the plaintiff as receiver subject to certain conditions which limited his powers merely to plucking and taking of cocoanuts in the property and directed the defendant to attend to the maintenance work. Some time later, on the plaintiff expressing his unwillingness to continue as receiver, this order was modified and an advocate was appointed as receiver subject to the same conditions. On 19-11-1956 plaintiff again made another application, I. A. No. 894 of 1956, stating that the defendant was not attending to the maintenance work in the property with the intention to cause deterioration to : and consequent loss to him and the property was, therefore, going to rack it and ruin and so the receiver might be empowered to attend to the maintenance work also and the limitations on his powers removed. Although this application was at first opposed by the defendant the parties ultimately effected a compromise in regard to it after the suit was transferred to the court of the Subordinate Judge of ernakulam and filed a joint statement on 26-2-1957 praying that the plaintiff might be appointed receiver without remuneration and that one-third of the income taken by the receiver might be periodically paid to the defendant and the balance retained by him. Acting on this joint statement, the Subordinate judge appointed the plaintiff as receiver on 28-2-1957 by an order which reads: "plaintiff is appointed receiver on the terms stipulated in the petition. Receiver is to execute the kychit etc. in 7 days". Plaintiff - receiver accordingly executed the kychit and took possession of the property on 19 -3 -1957. After this, the Kerala Stay of eviction Proceedings Ordinance, I of 1957, was passed on 11-4-1957 and in continuation of that Ordinance the Kerala Stay of Eviction Proceedings Act I of 1957, was passed on the 31st May 1957; and after the enactment of the Kerala stay of Eviction Proceedings Act, I of 1957, the defendant filed a petition, I. A. No. 1540 of 1957, on 17-8-1957 praying that as the suit has been stayed under the provisions of Act I of 1957 the order appointing the receiver may be vacated. Although this petition was opposed by the plaintiff the lower court allowed it on 26-9-1957 and cancelled the order appointing the receiver. THE relevant portion of the lower court's order reads as follows: "the suit now stands stayed under Act I of 1957. THE position is that the plaintiff cannot now do anything to recover the arrears of pattern for the recovery of which alone the suit has been instituted. THEre is no reason why the properties should under the circumstances remain in the management of a receiver. THE plaintiff alleges that the defendant has not been maintaining the properties properly and that to put the defendant in possession of the properties will cause a further deterioration of the property. THEse are matters which do not properly arise for consideration in this suit for recovery of arrears of pattern only in respect of a holding in respect of which the defendant is entitled to permanency of tenure. It is therefore ordered that the plaintiff will cease to function as receiver of the properties forthwith and will put the defendant in possession of the properties and that the question of his discharge will be considered when he moves for it". THE appeal is against this order.