AHMED HUSSAIN Vs. SAIDANI BI

JUDGEMENT

(1.) The petitioner was the defendant in O. S. No. 88 of 1953 on the file of the Sub- Court, Chingleput. The subject-matter of the litigation was a house. The plaintiffs claimed that they were the owners of the house and that the defendant, had been merely permitted by Abdul Subban Saheb their predecessor-in-title to occupy the house free of rent. The plaintiffs alleged that after the death of Abdul Subban Saheb, the defendant, taking advantage of his possession, was setting up title in himself. They, therefore, sued to recover possession of "the property and also for compensation for the wrongful occupation of the premises by the defendant computed at Rs. 30 a month. The suit was compromised, the defendant undertaking to pay Rs. 500 for costs and Rs. 20 per month, from the date of the decree, as compensation for the occupation of the house. The defendant did not vacate the premises within the time promised. The decree-holders in consequence filed an execution petition. The defendant then claimed protection under Madras Act 5 of 1954. The learned Subordinate Judge overruled his objections and directed that execution should proceed. An appeal has been filed against that order and stay is asked for on the ground that this is a matter covered by Madras Act 5 of 1954.

(2.) The learned counsel for the petitioner urged in the main, three points. The first was that the suit was for a debt and that the circumstance that possession of the house was also prayed for made no difference since explanation (iii) to Section 3 of the Act, provides as follows:

(3.) The second point raised by the counsel for, the petitioner was that the decree in the present case includes a decree for costs and this is a debt, and, therefore, covered by Madras Act 5 of 1954. I am unable to accept this contention, because in, practically every suit, there is a claim for costs and, as a general rule, when the plaintiff succeeds, the Court grants him costs. To say that because the plaintiff has succeeded and he has been awarded costs, the defendant gets the protection of Act 5 of 1954, would be to reduce the entire proceedings to a farce.