ANTHONI VARGHESE Vs. PRABHAKARAN PILLAI

JUDGEMENT

(1.) THIS second appeal is by the 1st defendant judgment debtor, whose objection to delivery on the strength of The Holdings (Stay of execution Proceedings) Act VIII of 1950 has been concurrently rejected by the courts below.

(2.) THE question depends upon whether the appellant has "failed to pay the rent of the holding which has accrued due after the commencement of the Act", within the meaning of Cl. (a) of the proviso to s. 4 of the Act. THE appellant set-off the amount granted to him by way of costs as against the plaintiff-decree-holder under the decree in the case and paid into court what he alleged was the balance of the rents. On this, the executing court held that he was still in arrears, apparently on the footing that the set off claimed was not allowable and rejected his objection to delivery. This order was confirmed by the learned District Judge in appeal, though the exact grounds on which he disposed of the appeal are not very clear from the judgment. Mr. George Vadakkeyil, learned counsel for the appellant, submits that there was no reason not to allow the adjustment of costs by way of set-off as claimed by the appellant on the principle of 0. 21, R. 19 C. P. C. and even assuming otherwise, the executing court should have allowed the 1st defendant time to deposit the deficiency.

(3.) LEARNED counsel for the respondent urged that the 1st defendant had taken considerable time in making the deposit even of the balance and that again, after issue of notice to him to show cause why delivery should not be granted and the orders of the court below should be sustained at least on that ground. The question, however, is one of the satisfaction of the court that the 1st defendant has failed to pay the rent. Even if it be found that the tenant has not paid the rent that accrued due after the commencement of the Act on the due date, the court has still a discretion to refuse to order delivery of possession of the holding. As held in Krishnan v. Govinda Prabhu, 1952 K. L. T. 224, F. B. ; "this discretion will certainly have to be exercised in a judicial manner. Ordinarily the court will not order delivery of possession of the holding if the tenant pays the rent before delivery is ordered. But in exceptional cases the court may order delivery even if the rent is tendered or paid before delivery is ordered. The question for consideration in such cases will be whether there has been wilful and unjustifiable default on the part of the tenant in paying the rent. " The judgment then went on to indicate as a rule of practice that only in cases in which a demand for rent had been made by the landlord or notice had been given to the tenant by the court to show why delivery of possession of the holding should not be ordered, and the tenant without any fawful excuse failed to pay the rent that it can be held that the tenant had failed to pay the rent of the holding as contemplated by the proviso but finally left it as a question primarily one of discretion to be exercised by the courts in a judicial manner.