P. NARAYANA PILLAI Vs. S. NAGAMONEY

JUDGEMENT

(1.) THE facts in relation to this proceeding have to be very clearly set forth, in the first instance, for an appreciation of the relatively narrow issue which is involved. In view of the somewhat protracted history of this litigation, we are setting forth only those outstanding facts which illuminate the sole issue now arising for our determination. O. S. No. 49 of 1957, on the file of the Subordinate Judge of Nagarcoil, was a suit by the petitioner -appellant for declaring the right of the petitioner -appellant to be in possession of item 1 of the plaint -schedule. That suit itself came to be instituted in the following manner. Item 1 was sold in execution of a decree O. S. No. 973 of 1113 M. E. and was purchased by one Sivanandan in Court auction who, in his turn assigned his rights to the defendant -respondent. When the defendant -respondent attempted to take possession of the property, he was obstructed by the appellant who claimed rights as a tenant put in possession notwithstanding the Court auction purchase and the assignment of that right. On an application under the processual law, the Court executing the petition for delivery directed removal of the obstruction. The present appellant filed O. S. No. 49 of 1957 on the file of the Subordinate Judge of Nagarcoil, under the relevant provisions of Order 21, Civil Procedure Code, for setting aside the claim order. Since the decree in that suit is of some importance, and is to be found among the typed papers, we shall immediately refer to it.

(2.) THE decree in that suit states, in explicit terms that the summary order passed in the execution proceeding was to be set aside. This implied that the claim of the obstruct or was upheld. But the Court also directed, as part of the decree, that the plaintiff had the right to be in possession of item 1, so long as he was not paid the value of the improvements effected, and that his right was to be so declared under the decree. This is the first stage of the relevant events.

(3.) THE respondent appealed to this Court from the decree in O.S. No. 49 of 1957, and the appeal was ultimately dealt with by Kailasam, J., in which by judgment he dismissed the appeal. But, in the meantime, the respondent herein filed an application for appointment of a Receiver to the property mainly on the ground that the plaintiff (appellant) was committing acts of waste and destroying the property or diminishing the value of the property. That matter came up before Ramachandra Iyer, J., as he then was, in an interlocutory proceeding and the learned Judge directed the appointment of a Receiver. It is not in dispute between the parties that, in pursuance of this order, the lower Court appointed the present respondent as Receiver, and the record explicitly shows that though he might have obtained a symbolical delivery, earlier, he took actual delivery of the property, from the plaintiff -appellant, in his capacity as Receiver and by virtue of orders of Court. There is an observation in the judgment of Ramachandra Iyer, J., that the only right of the plaintiff appellant was to obtain a sum of Rs. 1,600 being the value of the improvements and that, the appellant had ''no further right to possession of the property." This observation may not be correct for reasons that we shall set forth later ; actually, it does not appear that, in that purely interlocutory proceeding, the statutory right, now claimed by the tenant (appellant) to be in undisturbed and actual possession of the property, notwithstanding the Court auction purchase and other proceedings, was brought to the notice of the Court.