Decided on March 12,1963


Referred Judgements :-


Cited Judgements :-



- (1.)This Revision Petition comes up before us on an order of reference passed by the learned Judge who heard it first. The reference order reads:
"Two questions of some difficulty which are of general importance and are not covered by authority arise in this case. The first is whether, in the absence of a provision similar to S.43 of the Malabar Tenancy Act, a varomdar under a lessee (whose lease has determined) can claim fixity under S.6 of Kerala Act 4 of 1961 (the case arises from the Cochin area in respect of which that Act has not been struck down) or stay of eviction under S.5 of Kerala Ordinance 8 of 1962 which was in force when the order of the lower court was made or under S.5 of Kerala Act 7 of 1963 which has since replaced the Ordinance. This, not as against the person under whom he holds but as against the owner of the land. In this connection the definition of 'eviction', 'tenant' and 'holding' in the several statutes and the use of the word 'resumption, in S.6 of Act 4 of 1961 are relied upon in support of the contention that the rights can be claimed only as against the person under whom the varomdar holds and not as against that person's landlord between whom and the varomdar there is neither privity of estate nor privity of contract. The second question is whether the grant of a varom amounts to a transfer or delivery of the land in respect of which it is granted or of any interest therein so as to be hit by S.64 of the Civil procedure Code in this case the varoms under which the petitioners claim were admittedly granted after the 1st respondent decree holder auction purchaser had attached the land in question before judgment or in case it does not, a varom being a mere licence, S.53 of the Easements Act operates along with S.64 of the Civil Procedure Code so as to make the grant of the varom unauthorised and of no effect so far as claims under the attachment are concerned. For the reasons already indicated I adjourn the case to 6-3-1963 for being heart by a Division Bench.

(2.)The revision petitioners are counter petitioners 9 to 14 in a petition moved by the auction purchaser of two items of properties in execution of the decree in O. S. No. 212 of 1952 of the Subordinate Judge's Court, Irinjalakuda. The decree holder attached these properties on 31-10-1952, i. e. in 1128 M. E. The revision petitioners, counter petitioners 9 to 14 in the application moved by the auction purchaser, claimed to hold these properties under a varom arrangement entered into by counter petitioners 7 and 8, the alleged lessees of the judgment debtor from the year 1130. It must be mentioned that regarding item No. 2 6.55 acres in extent the revision petitioners had a further case that there was a mortgage before the date of attachment and that an execution sale followed in a suit on the mortgage and that the mortgage right being anterior to the attachment, the execution sale pursuant to the mortgage decree will not be subject to the attachment. These contentions were raised in an objection which they filed along with a petition, E. A. No. 21 dated 8-1-1963, by which they prayed that these additional objections may be accepted. This application was rejected by the court below by the order:
"Heard both sides. This is the third objection filed by the parties. There is no bona fides in this petition and it is rejected."

It is the complaint of the revision petitioners that the additional objection was wrongly rejected. We think that in the circumstances of this case, the revision petitioners must be allowed to urge the further contentions raised in their objection dated 8-1-1963. We, therefore, set aside the above order of the court below and remit the case for a de novo enquiry and decision of the claim regarding item No. 2, after considering the objections raised by the revision petitioners by their objection dated 8 1 1963.

(3.)So far as item No. 1 is concerned, it is clear from what is stated above that the alleged lease and the varom arrangements took place after the date of attachment. Reliance had been placed on the provisions of Act I of 1957, Act IV of 1961, Ordinance 8 of 1962 and also Act VII of 1963 for the contention that varomdars are tenants and that they are entitled to fixity of tenure and that according to the provision in S.5 of Act VII of 1963, they are not liable to be evicted. When delivery of these items in execution was sought by the auction purchaser, the revision petitioners obstructed. The auction purchaser, then moved an application for removal of the obstruction. This has been allowed by the court below, and it is submitted, wrongly. According to the revision petitioners the provisions of the statutes mentioned above will apply notwithstanding any other law or order of court and therefore it does not matter that the alleged lease and the varom arrangement were after the date of attachment. It is also contended that the leasing out of the property is an ordinary mode of enjoyment, that it involves no transfer of property or any interest in the property, and therefore S.64 of the Code of Civil Procedure is not attracted. We will examine this latter contention first. A learned Judge of this court in a decision reported in Sankaran Nambiar v. Pilliathiri Amma ( 1961 KLT 639 ) took the view that a lessee claiming under a lease arrangement entered into after the property was attached cannot put forward the rights under the lease since those rights are void as against claims enforceable under the attachment. The learned Judge also took the view, that the wording of the statutes referred to, that the provisions thereof would apply notwithstanding any other law, cannot save the rights of an alleged tenant, the tenancy having come into existence after an attachment. We think this view is correct. But counsel for the revision petitioners invited our attention to three decisions, two of the Allahabad High Court and one of the Calcutta High Court. In Dal Chand v. Nathu Lal (AIR 1936 All. 265), Sulaiman, C. J. took the view that the mode of ordinary enjoyment of the property by entering into a lease arrangement does not involve a transfer contemplated by R.54 of O.21 of the Code of Civil Procedure. And in the decisions reported in Ml. Aziz Fatma v. Mukund Lal (AIR 1932 All. 480) and Pramatha Nath Bhattacharjee v. Sashi Bhusan Banerjee ( AIR 1937 Cal. 763 ), the view has been taken that a lease executed in similar circumstances is not affected by the rule of lis pendens embodied in S.52 of the Transfer of Property Act. But a contrary view has been expressed in a decision of the Nagpur High Court reported in Maruti v. Chittaranjan (ILR 1955 Nag. 607). The learned Chief Justice of that court, B. P. Sinha, C. J., took the view that even such leases will be affected by S.64 of the Code of Civil Procedure. With great respect, we adopt this view. It is therefore, clear that neither the lease in favour of counter petitioners 7 and 8, nor the varom arrangement said to have been entered into by counter petitioners 7 and 8 and the revision petitioners can prevail against the attachment which was effected earlier. This is so notwithstanding the provisions in the enactments referred to above.

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