KRISHNANKUTTY Vs. BALAKRISHNA GUPTAN

JUDGEMENT

(1.) For arrears of rent the 1st respondent decree holder obtained a decree for sate of the leasehold. The final decree was passed on 10-1-1966. It is not disputed before me that the decree in question is not one to which O.34 of the Code of Civil Procedure, 1908, is not attracted Pursuant to the said decree the leasehold was brought to sale on 5-12-1966. The same was sold on that day for a portion of the decree amount. However, as is seen from the first court's order and as submitted before me, the sale has not yet been confirmed.

(2.) It appears that after the leasehold was said as aforesaid, the appellant judgment debtor filed an application to set aside the sale invoking R.90 of O.21 of the Code. While the said application was pending, the Kerala Land Reforms Act, 1963, was amended by the Kerala Land Reforms (Amendment) Act, 1969, which came into force on 1-1-1970. On the coming into force of the amending Act, the E P. as well as the application for setting aside the sale under R.90 of O.21 were dismissed. The decree holder preferred an appeal against the dismissal of the execution petition but the judgment debtor did not prefer any appeal against the dismissal of the application for setting aside the sale. The decree holder's appeal, A S. No. 64 of 1970 on the file of the Sub Court, Ottappalam, was allowed on 22-1-1972. Pursuant to the decision in the appeal the E. P. was thereafter restored. Thereupon the appellant filed I. A. No. 315 of 1973 invoking S.73(3) of the Kerala Land Reforms Act, 1963, as amended by the amending Act of 1969. It is also submitted that the appellant has filed another application, E. A No. 128 of 1976 before the lower court invoking R.5 of the O.34 of the Code of Civil Procedure, 1908. The last mentioned petition is, according to the learned counsel for the appellant, pending before the lower court.

(3.) S.73 (3) of the Kerala Land Reforms Act, 1963, enables a judgment debtor against whom a decree or order has been passed for the recovery of arrears of rent that accrued due prior to 1 5 1968, to get such decree or order amended in accordance with the provisions of sub-s. (1) of S.73. By the earlier portion of sub-s. (3) of S.73, a decree holder landlord can enforce the decree for arrears of rent that accrued due prior to 1-5-1968 only to the extent of the amount due to him (the landlord) under sub-s.(1). It is not necessary in this case to go into sub-s. (1) itself in so far as the question before me is as to whether the application field by the appellant invoking S.73 (3) of the aforesaid Act for amending the decree is maintainable.