THIRUMALAI TOBACCO COMPANY Vs. K. MOIDEEN KOYA HAJEE

JUDGEMENT

(1.) The appellant is the decree holder in O.S. No. 41 of 1973. In execution of a money decree, the petitioner filed E.P. No. 194 of 1973 for attachment of the respondent's tenancy rights in Shop Room No. 10/227 in the Calicut Corporation. Apprehending that the respondent was attempting to transfer his tenancy interest, the petitioner got it attached on 26th November 1973. The respondent raised an objection that he had no saleable interest in the property. This objection was overruled by the execution court on 17th January 1975 and sale papers were ordered to be produced. In appeal, the learned District Judge reversed the decision of the execution court and held that the tenancy interest could not be attached. Hence this second appeal.

(2.) The appellate Judge held that the provision of the Kerala Buildings (Lease and Rent Control) Act, for short the Act, applies to the building in question, the provisions of which prohibited transfer of tenancy interest; such transfers entailing forfeiture of the lease. The tenancy interest of a tenant governed by the Act is not saleable and hence it cannot be attached or sold in execution of a decree. The learned Judge observed in paragraph 3 of his judgment that the decree holder's counsel conceded before him that he did not know whether the judgment debtor was in possession of the building as a lessee for a term or as a tenant at will or as a tenant from month to month. It was without further ascertaining the status of the respondent that the appellate Judge reversed the order of the executing court.

(3.) When the appeal originally came before me for hearing, 1 felt that this aspect of the matter had to be made clear and therefore directed the appellate Judge to record a finding as to whether the judgment debtor was in possession as a lessee for a term or was a tenant holding over and also to ascertain whether the judgment debtor was in possession of the shop room or whether he had ceased to have interest in it, because the judgment debtor did not appear before me. The appellate Judge examined two witnesses and admitted a document (cooly chit) in evidence and recorded the following findings: