D THYAGARAJA IYER Vs. ABISHEGA KATTALAI OF TIRUVARUR DEVASTHANAM REPRESENTED BY ITS EXECUTIVE OFFICER, SRI MAPANDIAN PILLAI

JUDGEMENT

(1.) The petitioner in this civil revision petition is the defendant in S.S. No. 4.5 of 1946 on the file of the Court of the Sub-Collector, Nepapatam, which is a suit filed under Section 77 of the Madras Estates Land Act (Act I of 1908). It is admitted that the plaint asks for a sale of the holding of the ryot for recovery of the arrears of rent claimed. Learned counsel are not agreed as to whether the suit was filed shortly before or shortly after the 4 October, 1946, on which date Madras Act XVII of 1946 came into operation. But the exact date of the suit is immaterial and it is admitted that it was instituted early in October, 1946. Shortly after filing his written statement the petitioner applied for stay of the suit under the said Act and the Deputy Collector by his order, dated 2nd November, 1946, accordingly stayed it till 15 April, 1047. It would appear that alorg with this suit several other suits were also stayed under similar orders. Against the orders passed in four of such suits civil revision petitions were filed in the High Court on behalf of the present respondent which is Sri Thyagarajaswami Devasthanam, the plaintiff in the entire batch of suits. While dismissing those civil revision petitions at the stage of admission Horwill, J., made the following order: Under Section 4(1)(b) of Act XVII of 1946 the tenant had two months from the coming into force of the Act in which to deposit 2 years arrears of rent. The order of the Deputy Collector was made within a month of the passing of the Act : so the defendant was entitled to a stay until 4th December, 1946. There is no reason to think that the Deputy Collector intended to continue to stay the suit beyond that date, whether the defendant paid the arrears or not. The petitions are dismissed. On the 27 February, 1947, the plaintiff in the present suit filed an application before the Deputy Collector stating that the stay order already granted must be taken to have expired as the defendant did not deposit two years arrears of rent and praying that the suit should therefore be taken up for trial. In support of his application he would appear to have produced a copy of the order of Horwill, J. The Deputy Collector thereupon cancelled the order of stay which he had passed on the 2nd November, 1946, and directed that the trial of the suit should be proceeded with. The present civil revision petition is against this order of the Deputy Collector which is dated 31 March, 1947.

(2.) Mr. Desikan argued that the Deputy Collector should not have cancelled his previous order after having directed that the suit should not be taken up for trial before 15 April, 1947. But I do not see why the Deputy Collector should not advance the trial of the suit when it is pointed out to him that an order of stay which he had previously made was passed for a period longer than what is warranted under the provisions of the Act. An order of stay is not an adjudication on the rights of the parties and it is quite within the competence of the Court to advance the trial of a suit notwithstanding the order of stay previously made, or if it is so inclined, to continue the order of stay for a longer time.

(3.) It was next argued by Mr. Desikan that there is no provision under which in a suit like the present one the Court could direct the deposit of arrears of rent for two years. Section 4(1) runs as follows: All suits, proceedings in execution of decrees or orders and other proceedings (a) for the eviction of tenants from their holdings or land, as the case may be, or in which a claim for such eviction is involved, whether in addition to a claim for rent or not, or (b) in which the sale of the holding of a tenant or ryot for recovery of rent is claimed and which are pending at the commencement of this Art or may be instituted thereafter in any civil or revenue Court shall be stayed subject to the provisions of the following sub-sections. It is clear that Clause (a) does not apply to this suit and it is equally clear that Clause (b) applies. The question, however, is whether the order of stay is subject to any of the conditions laid down later in this section or in other words whether any of the following sub-sections covers a suit like the present. Sub-section (2) is concerned with suits for eviction of tenants in which there is also a claim for rent. Clause (i) of Sub-section (2) deals with such suits instituted before the commencement of Act XVII of 1946, while Clause (it) of the same sub- section deals with like suits instituted on or after the commencement of the Act. The present suit being one for recovery of arrears of rent and for an order directing the sale of the holding of the ryot for such recovery would obviously not come under Sub-section (2) which goes and should be read along with Clause (a) of Sub-section (1).