ITTOOP MATHEW Vs. S SIVARAMAKRISHNA AIYAR

JUDGEMENT

(1.) The judgment - debtor is the appellant. The second appeal arises from conflicting orders passed by the courts below in execution of a decree for recovery of possession of property on the basis of a lease. The decree holder obtained delivery of possession through Court on 15-2-1957. The judgment - debtor made an application on 20-2-1957 for redelivery of the property on the ground that he was entitled to retain possession of the property under Act VIII of 1950 read with Act III of 1956 and that notice of delivery was not given to him. The learned Munsiff allowed the judgment - debtors application but the order was reversed in appeal; hence this second appeal.

(2.) The main point urged is that delivery of possession of the holding should not have been allowed in view of the provisions of Act VIII of 1950 and Act III of 1956. The earlier Act stayed proceedings in execution of a decree for recovery of possession of a holding. However, under the proviso to S.4 of the Act the Court could order delivery of possession if the judgment - debtor had failed to pay the rent of the holding which had accrued after the commencement of the Act. It is not disputed that rent after the date of the Act was in arrears. The contention urged is that under S.3 of Act III of 1956 no application for execution of a decree in respect of a debt due from an agriculturist could be made before the expiry of 6 months from the commencement of the Act i. e., from 10th September 1956, and that this in effect nullified the proviso to S.4 of Act VIII of 1950 during the said period. Learned counsel for the appellants argued that S.3 thus effectively prevented execution of the decree for recovery of possession also, as he could not be treated as a defaulter. I am unable to accept this argument. Act III of 1956 was passed to give relief to agriculturist debtors in the matter of payment of decree debts, while Act VIII of 1950 was intended to prevent eviction of tenants who were paying the rent due on their holdings after the date of the Act. The later Act contains no reference to the provision in the earlier Act and there is no prohibition in that Act against a tenant paying the rent due on his holding. All that the later Act prohibits for a period of 6 months is the institution of suit or proceedings in execution for recovery of a debt from an agriculturist This does not prevent him from paying the rent and thereby avoiding eviction from the holding. If Act III of 1956 had been intended to prevent eviction also, provisions in that behalf would have been made therein. In the absence of such provisions it has to be held that Act III of 1956 was not intended to prevent eviction for nonpayment of rent, or that the immunity given by that Act was intended to nullify the proviso to S.4 of Act VIII of 1950. This is the view taken by the lower appellate court and I do not see any reason to differ.

(3.) The only other point raised is that notice was not given to the appellant before the property was delivered over to the decree holder. Learned counsel for the appellant conceded that there was no provision of law which required the service of a notice stating the date fixed for delivery of possession. So far as this case is concerned, it is seen from the records that a notice was issued to the judgment - debtor to show cause why delivery of possession should not be given to the decree holder. Though he accepted that notice, he kept quiet. The date fixed for showing cause happened to be a holiday and this is pleaded as the excuse for the judgment - debtors inactivity. When a posting happens to fall on holiday, the court adjourns the case to another day by a notified order and what ought to have been done by the parties on the earlier date should be done on the adjourned date. The judgment - debtor had no legitimate reason to await another notice and the omission to issue a second notice is no valid ground for ordering redelivery.