P I IDICULA Vs. PADMANABHAN NAIR
LAWS(KER)-1967-7-22
HIGH COURT OF KERALA
Decided on July 14,1967

P.I. IDICULA Appellant
VERSUS
PADMANABHAN NAIR Respondents

JUDGEMENT

- (1.) There is neither privity of contract nor privity of estate between a mortgagor and a tenant of his mortgagee. The tenant is not a tenant of the mortgagor. The dispossession of such a person by the mortgagor in execution of a decree for the redemption of the mortgage can hardly be described as "eviction" within the meaning of S.2(12) of Act 1 of 1964 "recovery of possession of land from a tenant" surely means recovery from a tenant of the person recovering not from a tenant of some other person so as to entitle that person to the protection of S.106 of the Act. That apart, the lease in this case was after the institution of the suit for redemption and the obstruction to delivery offered by the lessee, as a representative of the mortgagee judgment debtor, was not lawful having regard to the provisions of S.52 of the Transfer of Property Act and its particular application in R.102 of O.21 of the Cods see Sankaran Nambiar v. Pilliathiri Amma ( 1961 KLT 639 ). The non obstante clause with which S.106 opens does not, in my view, enable a transferee pendente lite to put forward any defence which the judgment debtor himself could not have put forward.
(2.) The lower appellate court was right in allowing the application made by the respondent decree holder under O.21 R.97 of the Code.
(3.) I dismiss this appeal with costs.;


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