KOLANGARAKANDI MOOZHIPURATH GOPALAN Vs. MARUTHIYOTT VEETTIL SANKARAN NAIR

JUDGEMENT

(1.) The appellants sued to recover a sum of Rs. 128-7-0 being the arrears of rent for the Malabar years corresponding to 1939 to 1942 due under a registered marupat or lease dated 19 May, 1919. The plaintiffs had filed a previous suit, O.S. No. 609 of 1931, for possession and arrears of rent on the basis of the same marupat and got a decree on 19 December, 1932, for possession with arrears of rent and future rent for three years on payment of the value of improvements. There was an appeal by the tenant and in appeal the value of the improvements was enhanced, but the decree was otherwise confirmed on 28 October, 1935. No steps appear to have been taken at any time to execute this decree. On 10 September, 1939, after Madras Act IV of 1938 had come into force, the tenants made a deposit of the arrears of rent for the Malabar year corresponding to fasli 1346. There must also have been a similar deposit in respect of the rent of fasli 1347 on some date before 30 September, 1938; for it is common ground that the earlier arrears of rent under the decree have been cancelled by the application of Section 15 of Madras Act IV of 1938. But no papers have been exhibited regarding the deposit in respect of fasli 1347. Whether because of difficulties under the law of limitation, or because of their inability to pay for the improvements, the appellants instead of seeking to enforce their previous decree for possession, filed the present suit in which they claimed the right to recover the arrears of rent of the years corresponding to 1939 to 1942 by the sale of the tenant's rights. It was contended for the tenants that the decree in the former suit was barred by limitation, that if it was not barred a separate suit for rent would not lie by reason of Section 47 of the Civil P. C. and the provisions of Section 6 of the Malabar Compensation for Tenants Improvements Act, and that the lease sued on no longer subsisted having been merged in the prior decree. The trial Court held that the earlier decree was barred by limitation, that the lease sued on did not subsist by reason of that decree and that the suit was barred by the application of Section 47 of the Civil P. C.. The lower appellate Court, without going into the question of limitation, dismissed the suit on the ground that under Section 6(4) of the Malabar Compensation for Tenants Improvements Act, the right of the landlord to rent for the years subsequent to the decree has to be determined as a matter arising in execution and cannot form the subject of a separate suit.

(2.) In appeal it is contended that Section 47 of the Civil P. C. has no application, that the conduct of the respondents in taking advantage of Section 15 of Act IV of 1938 amounts to an admission of the subsistence of the tenancy and that the fact that the previous decree had become unexecutable does not deprive the landlord of his right to file a separate suit for future rents. Reference is also made to the decision of the Privy Council in Raghunath Singh V/s. Hansraj Kunwar (1934) 67 M.L.J. 813 : L.R. 61 I.A. 362 : I.L.R. 56 All 561 (P.C.), wherein the right to file a second suit for the redemption of a mortgage when the first decree did not foreclose the right of redemption was recognised.

(3.) The relevant provisions of the Malabar Compensation for Tenants Improvements Act are Secs.5 and 6. Section 5 gives the tenant a right on ejectment to compensation for improvements and provides that every tenant to whom compensation is so due shall, notwithstanding the determination of the tenancy, be entitled to remain in possession until ejectment in execution of a decree or order of Court and the tenant so continuing in possession shall during such continuance hold as a tenant subject to the terms of his lease. Section 6(1) provides that in a suit for ejectment when the defendant establishes a claim for compensation for improvements, the amount thereof shall be ascertained and the decree shall provide that the defendant shall put the plaintiff in possession of the land with the improvements thereon on payment by the plaintiff into Court of the amount found due for compensation. Sub-section (2) provides for the adjustment of rent due by the defendant to the plaintiff against the amount found due from the plaintiff to the defendant by way of compensation for improvements. Sub-section (3) provides for what is to happen when there is a delay on the part of the plaintiff in paying compensation for improvements. In such circumstances there is to be a re-valuation and a further adjustment of subsequent rent, etc., against the value of improvements and the decree has to be varied in accordance with the order of the executing Court. Subsection (4) provides that every matter arising under Sub- section (3) shall be deemed to be a question relating to the execution of a decree within the meaning of Section 244 of the Civil P. C. (now corresponding to Section 47 of the Civil P. C.). Reading all these provisions together, it is clear that when the landlord has obtained a decree for the eviction of the tenant subject to the payment of compensation for improvements, a statutory tenancy is created for the period during which the decree may be pending execution. During this statutory tenancy, the relations between the parties are governed by the terms of the lease sued on. If the landlord does not immediately pay the value of improvements as determined at the time of the decree, the tenant acquires a right to re valuation of the improvements and the payment of any excess and the landlord obtains the right to set off against these improvements any future rent. But any question Relating to the increase of improvements and the amount of future rent to be set off against these improvements is to be determined by the executing Court as a matter arising in execution. Prima facie, therefore, any attempt by the landlord to recover the rent separately for the subsequent periods ignoring his previous decree would be barred under Section 47 of the Civil P. C.. So much has recently been held by Horwill, J., in Sulian Abdur Rahman Ali Raja Avergal V/s. Permi and Ors. S.A. No. 1301 of 1943 with which decision we are in agreement. It follows, therefore, that the lower Courts were right in holding that the present suit for rent is barred under Section 47 of the Civil P. C.. We may add that in our opinion the decision in Raghunath Sringh's case1 has no application having regard to the provisions of the special Act.