CHEERAN MATHUKUTTY Vs. MATHUKUTTY

JUDGEMENT

(1.) The short point that arises for consideration in this Second Appeal is as to whether the tenants, who are the appellants before me, are entitled to get restoration of the holding. There is no dispute-about the fact that the decree in the suit was passed on 18-3-1944 and there is also no dispute that the conditions required under S.52 of the Act XXXIII of 1951 are all satisfied.

(2.) This application was filed by the tenants under S.52 of the said Act for restoration. The Trial Court directed restoration to be given on deposit of the Kanartham inclusive of puramkadam namely, Rs. 317-13-9. The landlords took up the matter in appeal and the learned Subordinate Judge has reversed the order of the Trial Court. At the time when the appeal was pending in the lower appellate court, the Madras High Court had to consider the scope of relief to be granted under S.52 of Act 33 of 1951. That decision was by Govinda Menon and Ramaswami, JJ., reported in K. Viswanathan v. K. Kanaran (1956-II-M.L.J. 87). Though the date mentioned in S.52 of the Act was 1st July 1942, the learned Judges, after considering the provisions of the various enactments namely of 1945, 1951 and 1954, came to the conclusion that S.52 of the Amending Act of 1951 will not apply to cases of decrees passed before 6th December 1945. The lower appellate court, relying upon this decision, held that the tenant in this case, is not entitled to restoration and as such, reversed the order of the Trial Court and dismissed his application.

(3.) Against the said order of the learned Subordinate Judge, the tenants have filed this appeal. It is not necessary for me to consider the decision of the Madras High Court referred to above at any great length because a subsequent legislation has supervened namely, the Malabar Tenancy Amending Act XXII of 1956. The decision of the learned Judges was mainly based on the ground that S.4 of the Malabar Tenancy Second Amendment Act 1945-Act XXIV of 1945 was not repealed by the 1951 Amending Act; and this was one strong circumstance which influenced the learned Judges in coming to the conclusion that S.52 will not apply to cases where the decrees have been passed before 5th December 1945. In the new Act, S.5 specifically repeals S.4 of Madras Act XXIV of 1945. Sub-S. 2 of S.5 of the new Act further gives relief to a tenant whose holding has been taken possession of by a landlord in execution of a decree passed on or after 1st July 1942 & if such decree would not have been passed, if the principal Act as amended by Madras Act XXIV/45, XXXIII/51 and XXII/56 had been in force at that time.