KUNCHIPENNAMMA Vs. SUBRAMANIYA IYER

JUDGEMENT

(1.) These two cases were heard together as the matter involved in both are connected and the parties are the same.

(2.) A.S. No. 268 of 1958 arises from an order in execution of the decree in O.S. No. 78 of 1951 of the Subordinate Judges Court of Palghat. The decree was for eviction of the appellant, a tenant of the plaintiff, and for recovery of past and future rent from him. The appellant was the first defendant in the suit and the other defendants were his subtenants. The decree directed the first defendant to pay the amount decreed in instalments and further provided that on default of such payment, the plaintiff would be allowed to recover possession of the properties. The properties were delivered over to the decree holder from the possession of subtenants on 11-4-1957. After delivery the first defendant filed E. A. No. 602 of 1957 stating that delivery was effected after the Kerala Stay of Eviction Proceedings Ordinance, I of 1957 came into force and that she was entitled to re-delivery of the properties under S.9 of the Kerala Stay of Eviction Proceedings Act, I of 1957. The 1st defendant stated that actual physical possession was not handed over to the decree holder and that the amin merely prepared a record of delivery. The application was opposed mainly on two grounds, namely, (1) that possession having been recovered in execution from subtenants of the first defendant, the latter was not competent to apply for re-delivery and (2) that the question of re-delivery did not arise, as the first defendant did not admit the fact of delivery of possession. These objections were upheld and the first defendants application was dismissed. She has preferred this appeal from the order dismissing the application for re-delivery.

(3.) After obtaining delivery of possession the decree holder instituted another suit, O. S. No. 128 of 1957, against certain persons who were alleged to have trespassed on the property after the date of delivery. The suit was decreed and an application was made for appointment of a receiver for the properties. This was allowed by the court below. Stating that the defendants in the suit had surrendered possession to her, the original tenant applied for stay of proceedings under Act I of 1957. This was dismissed and C. R. P. No. 73 of 1959 is preferred by the tenant against this order.