CHERUKUTTY Vs. SUBRAMA SASTRIGAL

JUDGEMENT

(1.) The 1st respondent in this appeal, who is hereinafter referred to as the decree holder, filed EA No. 570 of 1978 in EP No. 213 of 1974 in OS No. 42 of 1971 before the Subordinate Judge's Court, Palghat, for attachment and sale of the immovable properties belonging to the judgment debtor therein. Accordingly the properties were attached and sold in court auction on 3-4-1978. The decree holder himself bid the properties in auction in two lots for Rs. 1,00,002/-. The sale was confirmed on 15-6-1978. He filed E A No. 421 of 1978 for delivery of the properties. Regarding lot No. 2 there was resistance for delivery by the appellant herein who filed EA No. 468 of 1978 claiming that the said property was in his possession as a lessee since 27-11-1974. According to him, he was not aware of the decree and sale till the Amin came to the property to effect delivery Therefore the decree holder is entitled to get only symbolical delivery and the prayer for possession has to be disallowed. The decree holder thereupon filed EA No. 570 of 1978 for delivery after removal of resistance. In that application he contended that the appellant had no valid title or possession over the properties and his claim was without any merit. The decree holder bad filed IA No. 712 of 1971 on 7-4-1971 for an interim attachment of properties. At that time the judgment debtor had filed an undertaking on 8-4-1971 not to alienate the properties. Therefore the alleged lease in favour of the appellant is invalid. The lower court accepted the contentions of the decree holder and ordered delivery after removing resistance. The appellant is challenging the said order in this appeal.

(2.) Ext.A1 is the copy of the petition, IA 712 of 1971, filed by the decree holder for attachment before judgment in O.S. 42 of 1971, Sub Court, Palghat. Ext.A1 shows that an affidavit was filed by the judgment debtor undertaking not to alienate the property till the disposal of the suit. The Sub Court dismissed the petition in view of the affidavit filed by the Judgment debtor. Ext.A2 is the affidavit in support of Ext.A1 petition for attachment before judgment. Ext.A3 is the affidavit dated 8-4-1971 filed by the judgment debtor (defendant in OS No. 52 of 1971. Sub Court, Palghat). In the affidavit he denied the allegations in the affidavit of the decree holder. Subsequently he gave an undertaking that he will not sell, alienate, or give possession of the properties to strangers till the final disposal of the said suit. The appellant produced Ext.B1 to B11 in order to prove that he was paying the building tax, water charges and also the licence fee for his business after the alleged lease in his favour. Exts. B12 to B15 are the rent receipts for the building issued to the appellant. Ext.B16 is the copy of the judgment in OS No. 129 of 1979 filed by the decree holder in this suit against the appellant herein.

(3.) There is not much controversy regarding facts. The alleged lease in favour of the appellant was after Ext.A3 undertaking by the judgment debtor dated 8-4-1971. According to the appellant, this property was outstanding on lease with the Lord Krishna Bank at the time of Ext.A3 undertaking itself. Subsequently the appellant was put in possession as lessee. According to learned counsel for the appellant the judgment debtor was entitled to lease out the property and that will not amount to alienation or handing over possession which alone was prohibited under Ext.A3 affidavit. It was also contended that the finding of the lower court that the appellant has not proved the lease is also liable to be set aside in view of the evidence produced by the appellant. The alleged lease was on 21-11-1974. No lease deed is produced, even though as Rw.1 the appellant stated that he had executed a karar dated 21-11-1974 with the judgment debtor. However, according to him, the agreement was in the possession of the judgment debtor and it was stated that he will be producing a copy of the same. From a reading of the evidence of Rw.1 it would appear that he had produced a document which required registration and therefore it was not marked. The 2nd judgment debtor, who is the wife of the 1st judgment debtor, was summoned to produce the lease deed. But she did not produce the document. In Ext.B1 letter dated 30-1-1978 stated to have been sent to the appellant by the 2nd judgment debtor to pay the building tax there is no mention that the appellant was a lessee of the building. There is some discrepancy in the door No. of the building shown in the execution petition and the No. shown in Ext.B2 building tax receipt. In the other documents produced also there is some difference in the No. of the house. The lower court therefore rightly held that none of these document prove a lease by the judgment debtor to the appellant. Ext.B16 judgment also does not show that the building was teased out to the appellant. Exts. B-12 to B-15 receipts also do not show that the receipts were for the petition schedule property. Learned counsel for the decree holder, submitted that when the Amin went for effecting delivery the case put forward by the appellant was that, the property was sold by the judgment debtor to him for Rs. 6,000/-. At that time there was no claim that he was a lessee. According to learned counsel this itself was a strong circumstance against the claim of lease.