CHITRABHANU NAMBUDIRIPAD Vs. KARUNAKARAN NAIR

JUDGEMENT

(1.) These two revision petitions have been heard together, being between the same parties, raising the same point and subjected to common argument. The point so raised is as to whether the stay of execution ordered by the executing Court under S.5 of Act 9 of 1967 (the stay was actually ordered under the corresponding provisions of the Ordinance which preceded the Act) is liable to be vacated, since, according to the auction purchaser, the holding had already been sold, albeit not confirmed, and the condition laid down under S.7 of deposit of the decree amount had not been complied with. The learned Munsiff dismissed the petition overruling the contention of the auction purchaser. I am disposed to agree with him, even though the line of argument which has appealed to me is slightly different.

(2.) Act 9 of 1967 contains three provisions for stay incases of decrees for arrears of rent. S.5 directs that all proceedings in execution of decrees (for recovery of arrears of rent in respect of a holding etc.) pending at the commencement of the Act shall be stayed. S.6 provides that where any holding has been sold in execution of any decree for arrears of rent and the tenant dispossessed of the holding after 1-4-1964 but before the commencement of Ordinance 4 of 1967 (the predecessor of Act 9 of 1967) such tenant shall be entitled to restoration of possession of the holding on certain conditions regarding deposit of the purchase money. S.7 deals with a case where a holding has been sold before Ordinance 4 of 1967 in execution of a decree for arrears of rent but the tenant has not been dispossessed and such tenant is given a right to get the sale set aside by depositing the decree amount with interest. Thus, whenever a decree for arrears of rent is put in execution, S.5, which is comprehensive in character, commands the Court to stay execution proceedings. If the proceeding is in execution and the decree under execution is one for recovery of arrears of rent, S.5 stands attracted. It is immaterial whether S.6 or 7 will also apply. In a loose sense one might imagine that S.5 deals with a pre sale stage, S.7 with a post sale but pre delivery of possession stage and S.6 with a post delivery of possession stage. On a closer analysis it will be clear that while S.7 applies only where possession has not been taken by the purchaser, it deals with a totally different relief from the one granted under S.5. Similarly, S.6, although it deals with a tenant whose holding has been sold and he has been dispossessed, the relief granted is different from what is accorded under S.5. Under S.7, the real relief claimed is the setting aside or the cancellation of the sale. Under S.6 the relief granted is a setting aside of the sale plus restoration of possession. A tenant content to apply under S.5 will not get the benefit of the sale being set aside, but will merely get the situation freezed where it is, that is to say, the execution proceeding at the stage at which it is will be stayed. The sale which has taken place will not be upset by such stay under S.5. It is open to the tenant to take advantage of S.7 or S.6, as the case may be, where a sale has already taken place. But it is also open to him not to take advantage of those provisions but merely to get the execution proceedings stopped, gazing at the stars for future legislation which might drop some manna. But if it does not, the sale will remain, because he has not chosen to take advantage of S.6 and 7. If I may put it differently, S.5 halts the decree holder in his march, while S.6 and 7 drive him and the auction purchaser back. If the tenant is content with the lesser relief, the decree holder cannot pretend to be aggrieved.

(3.) In this case, the decree being one for arrears of rent and the execution proceedings still pending, stay has been rightly granted under S.5. No ground has been made out to vacate that stay. In fact, if the decree holder was aggrieved by the stay ordered under S.5 he should have challenged that order and not challenged the tenant for a shadow right over cancellation of a sale which the tenant never demanded. The revision petitions are dismissed, but there will be no order as to costs.