CHACKO MUTHALALI Vs. JOSEPH ANTHRAPPER

JUDGEMENT

(1.) THIS is a revision preferred by the debtor against the order of the learned Subordinate Judge of Kottarakara holding that an application filed by him under clause (6) of Section 11 of Kerala Act 31 of 1958 is not maintainable. There was a mortgage executed by the petitioner on 7-7- 1123 in favour of respondent's father and it is not now necessary for me to go into the various recitals in the said document. But it is seen that there was a lease back by the mortgagee in favour of the present petitioner regarding one item, comprised in the mortgage, namely, 4 cents of land and a building. In view of the default committed by the present petitioner in the payment of rent under the lease deed, it is seen that the respondent instituted O.S. No. 163 of 1958 in the court of the District Judge of Quilon and it is also seen that a decree was passed directing the present petitioner to surrender possession of the property and there was also a decree for arrears of rent claimed by the respondent.

(2.) IT is stated in the order under revision by the learned Subordinate Judge:

(3.) MR . K.C. John, the learned counsel for the petitioner, contended that this view of the learned Judge is not correct and in support of his contention that clause (6) of S. 11 will apply even to such cases, the learned counsel relied upon a decision of the learned Chief Justice sitting with Smt. Justice Anna Chandy reported in Thomas v. Krishna Iyer 1959 KLT. 1233= 1959 K.L.R. 1047. After a perusal of the said decision, in my opinion, it will not assist Mr. John in his contention that clause (6) of S. 11 will apply notwithstanding the fact that the lessor- lessee relationship has come to an end and the property has been taken possession of by the mortgagee. It will be seen from the said decision that the learned Judges had before them a case where the mortgagor was still in possession of the property on the date of the coming into force of Act 31 of 1958 and this possession the mortgagor maintained notwithstanding the fact that the mortgagee had obtained a decree for eviction as against him on the basis of the lease and also for recovery of arrears of rent. At page 1234 it is observed as follows: