ALI KOYA Vs. NARAYANAN NAIR
LAWS(KER)-1968-9-2
HIGH COURT OF KERALA
Decided on September 23,1968

ALI KOYA Appellant
VERSUS
NARAYANAN NAIR Respondents

JUDGEMENT

- (1.) This appeal is by defendants 1 to 8 in O. S.1612 of 1957 on the file of the Munsif, Kozhikode-I.
(2.) After the preliminary decree in O. S. No. 32 of 1941 on the fib of the Subordinate Judge, Calicut, the suit property has been taken under a receiving order and leased out by the receiver on 24-10-1945 to one Ahammad Koya, whose legal representatives are the appellants herein. By the final decree in that suit the property has been allotted, in partition, to the plaintiffs respondents. In this suit, the plaintiffs seek to recover the property from the defendants, and the latter claim fixity of tenure. The Trial Court overruled the defence and decreed the suit. The defendants' appeal before the Additional Subordinate Judge, Kozhikode, has been dismissed with costs, citing the following observations in Jacob v. Subramania Iyer ( 1960 KLT 68 ): "A court or Receiver taking possession of property in suit does not thereby derive any title to it, much less any interest in it, not even a right of possession, except for administering or managing or preserving it for the benefit of the party rightfully entitled to it; if so, there is no interest to transfer or to convey. In administering the property, a court cannot act directly, but has perforce to function through the agency of others; in this respect, unlike the court, a receiver can, if he so intends or if the circumstances warrant, act by himself, but in the generality of cases he may find it necessary or expedient not to do so, but only through others. To us, it seems inconceivable, that the legislature had intended, by enacting a provision like S.4 of the Act, to interfere with and thereby paralyse the administration of the properties committed to the court, unless there are very strong grounds to believe that this was intended. The reasons which might conceivably have induced the legislature to curtail or suspend a landlord's right of eviction, do not appear to us to have any application, to that of a court or its officer, who is in no sense a landlord, but who merely preserves the property for the benefit of the party who may be found entitled to it." Hence this second appeal.
(3.) It is conceded that the immunity claimed by the appellants has now to be adjudged in the light of the provisions of the Kerala Stay of Eviction Proceedings Act, IX of 1967. Counsel for appellants contends that the Act IX of 1967 commands stay of all proceedings to evict tenants, inclusive of lessees under receivers of lands. It is pointed out that while S.3(1)(iv) of the Land Reforms. Act, I of 1964, exempts "tenancies...created by the Administrator General or the Official Trustee or an Official Receiver or officer appointed by a court under the provisions of any law, or by the court of wards, or by any person holding under, or deriving title from any of the officers or the court aforesaid: the exemption under S.3 of the Act IX of 1967 is only to "any lease of land ... granted by the Administrator General, Official Trustee or Official Receiver." and that the deliberate omission in the latter Act of leases created by officers appointed by Court indicates an intent to cover leases created by receivers within the Act. The identical contention was raised in Jacob v. Subramonia Iyer ( 1960 KLT 68 ) in connection with the Kerala Stay of Eviction Proceedings Ordinance, 1957, which exempted "rights created by the Administrator General, Official Trustee or Official Receiver, or by any officer appointed by a court under the provisions of any law, or by any person holding under or deriving title from any such officer" and the Kerala Stay of Eviction Proceedings Act, 1957, which exempted only "rights created by the Administrator General, Official Trustee or Official Receiver". It was overruled by Velu Pillai J., with concurrence of Sankaran C. J., with the observation quoted above. Incidentally it was observed therein that the term 'Official Receiver' occurring in the Ordinance and the Act has a wider connotation than ascribed to it in the Insolvency Act and included "a receiver appointed by court for the cultivation and realisation of the properties involved in a suit". In Vajravelu Mudaliar v. The Special Deputy Collector ( AIR 1965 SC 1017 C.B.) the Supreme Court has cited with approval the following principle of construction stated in Craies on Statute Law: "There is a well known principle of construction that where the legislature used in an Act a legal term which has received judicial interpretation, it must be assumed that the term is used in the sense in which it has judicially interpreted unless a contrary intention appears." This principle must apply with greater force when the expression judicially interpreted is used in a later enactment that replaced the statute in regard to which the interpretation was given. The Kerala Stay of Eviction Proceedings Act, IX of 1967, came in the wake of the Kerala Stay of Eviction Proceedings Act, 1957. In spite of the clear pronouncement in 1959 in Jacob v. Subramonia Iyer (I960 KLT 68) that the exemption of Official Receiver's leases would cover the court receiver's leases as well, the legislature has not expressed to the contrary in the later Act of 1967. The construction made in Jacob v. Subramonia Iyer (1960 KLT 68) must therefore apply to the expression in the Act IX of 1967 as well.;


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