JUDGMENT

1. A question of considerable importance arises in this second appeal. It relates to the application of Section 13B of the Kerala Land Reforms Act, 1963 (Act 1 of 1964), hereinafter referred to as ‘the Act’. Before referring to the facts of he case, I feel it is apposite to quote section 13B of the Act.

“13B. Restoration of the possession of certain holdings sold for arrears of rent.— (1) Notwithstanding anything to the contrary contained in any law, or in any judgment, decree or order of court, where any holding has been sold in execution of any decree for arrears of rent, and the tenant has been dispossessed of the holding after the 1st day of April, 1964 and before the commencement of the Kerala Land Reforms (Amendment) Act, 1969, such sale shall stand set aside and such tenant shall be entitled to restoration of possession of the holding, subject to the provisions of this section:

Provided that nothing in this sub-section shall apply in any case where the holding has been sold to a bona fide purchaser for consideration after the date of such dispossession and before the date of publication of the Kerala Land Reforms (Amedment) Bill, 1968 in the Gazette.

(2) Any person entitled to restoration of possession of his holding under sub-section (1) may, within a period of six months from the commencement of the Kerala Land Reforms (Amendment) Act, 1969, deposit the purchase money together with interest at the rate of six per cent per annum in the court and apply to the court for setting aside the sale and for restoration of possession of his holding.

(3) The court shall, if satisfied after such summary enquiry as the court deems fit, set aside the sale and restore the applicant to possession of his holding.

(4) The court may also order the applicant to deposit in court such amount as may be specified by the court towards costs of the decree-holder or the auction purchaser and the value of improvements, if any, effected on the holding after the sale.”

2. A landlord jenmi instituted a suit against one Pathumma for arrears of rent for three years, as O.S 632 of 1961, in the Munsiff's Court, Tirur. The suit was decreed. In execution of the decree, the tenancy right of Pathumma was sold in court auction on 14-6-1965. The decree holder himself purchased the property in auction. The same was confirmed. The respondent herein took delivery of the property on 25-8-1965. The original tenant - Pathumma died. One Ayidru was the legal heir of the leasehold interest. Ayidru sold his interest to one Moideen under Ext. B1. Moideen assigned his right in the property to Mohammed - one of the children of Ayidru. This was under Ext. B2 dated 21-4-1964. Ayidru filed an application under section 13B of the Act as E.A No. 646 of 1970 in E.P No. 688 of 1963 in O.S 632 of 1961. Ayidru died in 1975 and the legal representatives were impleaded. Finding that on the facts section 13B of the Act is applicable, the Munsiff Court allowed the application E.A 646 of 1970 and directed restoration of possession of the holding. The respondent herein filed an appeal before the Sub-ordinate Judge's Court, Tirur. The appellate court did not agree with the Munsiff Court and allowed the appeal. Now, the legal representatives of Ayidru appeal.

3. The question that is set for consideration before the appellate court as well as before this court is that no appeal would lie against the order passed in E.A 646/70. The Act does not provide for an appeal from orders passed on applications filed under section 13B of the Act. So, the court has to consider whether an appeal would lie under the Code of Civil procedure since the matter has been decided by a civil court.

4. The learned counsel for the appellants submits that the order has been passed by the execution court and so, no appeal lies from such orders. Counsel submits that the order can never be treated as a decree and as such no appeal under the general provisions of the Code of Civil procedure is possible.

5. The counsel on both sides referred me to several decisions highlighting the subtle points and nuances on those points. Counsel for the appellants referred me to two decisions of this court, which, according to him, would give a final answer to the question posed in the appeals. The decision are Gangadharan Nambiar v. Thambayi (1975 KLT 819) and Mohammed Khan v. State Bank of Travancore (1978 KLT 262).

6. 1978 KLT 262 deals with a question whether an appeal would lie against on order under section 8 of the Kerala Agriculturists Debt Relief Act, 1970. In considering this question, the Full Bench speaking through Subramonian poti, J., as he then was, said that if an adjudication by the court satisfied the definition of a decree in section 2(2) of the Code of Civil Procedure and an appeal is provided for against the decree of such court under the Code of Civil Procedure, an appeal would lie against such a decision even if there is no specific provision made in that behalf in the relevant statute. Further the court said that the question would be whether the adjudication by the court which is sought to be appealed against satisfies the definition of a decree as the term is defined in section 2(2) of the Code of Civil Procedure. The Kerala Agriculturists' Debt Relief Act II of 1970 does not provide for an appeal against an order under section 8, though there is an enumeration of the orders under some other sections of the Act as appealable. There is also the fact that the order challenged in the appeal is not any adjudication in a suit. It is an adjudication in execution proceedings. Such adjudication Would have been appealable as a decree when the definition of decree was wide enough to include an order under section 47. If it had thus been a decree with in the meaning of section 2(2), it would have been necessary to consider whether, notwithstanding the absence of a provision for appeal in the enactment, the order of the court below also should be considered as an appealable order. It has to be remembered that the express omission of orders under section 47 of the Code of Civil Procedure from the definition of decree in section 2(2) has rendered orders under section 47 not appealable since the commencement of the Code of Civil Procedure Amendment Act 104 of 1976 the Full Bench held that the order impugned in the case was passed subsequent to such amendment and no appeal would lie from an order passed under section 8 of the Kerala Agriculturists Debt Relief Act.

7. This decision has referred to the classic decision on the subject, viz. Adikappa Chettiar v. Chandrasekhara Thevar (A.I.R 1948 P.C 12). I feel that I should refer to the weighty observation of the Privy Council also in this context. In the Privy Council decision, orders under two applications under the Madras Agriculturists' Relief Act were considered for the purpose of determining whether an appeal would lie against those orders. In nutshell, the facts of the case can be stated thus:—

8. After a preliminary and a final decree were passed in a mortgage suit, the judgment-debtor made an Application in the suit under section 19 of the Madras Agriculturists' Relief Act to the Court which passed the decrees asking that the decrees be amended in accordance with the provisions of the Act and that the debt might be declared to have been wholly discharged. The court by its order dismissed the application on the ground that the judgement-debtor was not an agriculturist. In regard to the order in this application the Privy Council held that the order was not made in execution proceedings, but was made in a suit and amounted to a decree within the meaning of section 2(2) Civil Procedure Code and hence an appeal lay against such order under section 96 Civil Procedure Code though section 19, Agriculturists' Relief Act did not confer a right of appeal from such order.

9. The second order that was considered was passed under these circumstances. After execution proceedings were taken out to enforce the final decree in a mortgage suit and properties were advertised for sale, the judgment-debtor made an application under sections 8, 19 and 20, Madras Agriculturists' Relief Act praying that the execution proceedings and the auction sale then pending be stayed until the disposal of the question of the liability of the judgment debtor under section 19 and for a declaration that the debt was wholly discharged under section 8. The court by its order dismissed the application summarily on the ground that the judgment-debtor was not an agriculturist. In these set of facts, the Privy Council held that the order related to the execution, discharge or satisfaction of the decree within the meaning of section 47 and an appeal lay under section 96. So it is clear and plain that the first order was found to be appealable on the main part of the definition of ‘decree’ and the second order was found to be appealable on the deeming provision, viz. orders passed under section 47 C.P.C are deemed to be decrees.

10. In considering this question, differing with the view of the Full Bench of the High Court of Madras, the Privy Council observed:—

“The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appealleis, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal”.

11. If the provisions are ambiguous as to whether an appeal is contemplated or not, the canon of construction is that the ambiguity should be resolved in favour of the right to an appeal rather than against it. I shall quote Southerland.

“Statutes giving the right of appeal are liberally construed in furtherance of justice, and an interpretation which will work a forfeiture of that right is not favoured.”

12. Vide - Statutory Construction, 3rd Edn. Volume 3, paragraph 6807.

13. In Samidorai Themavarayar v. Vaithilinga Thennavarayar (A.I.R 1964 Mad. 314), Jagdisan, J. said that a provision for an appeal should be construed with a liaberality which will favour an appeal being preferred rather than with the stringency that would defeat it. Maxwell has made it very clear in the following lines.

“In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles, should in all cases of doubtful significance, be presumed to be the true one.”

14. Vide-Interpretation of Statutes - 11th Edition P. 183.

15. The Full Bench decision, while considering the order under section 8 of the Kerala Agriculturists' Debt Relief Act did not seem to have given importance to the fact that the section is intended for amendment of the decree and it is not sure whether the Legislature has contemplated by the provision that the amendment of the decree will be effected by the execution court, though the application was filed before the execution court. The wording of section 8, to my mind, indicates that the application has to be filed before the court which passed the decree because what is stated is “where before the commencement of this Act, a court has passed a decree for the repayment of a debt, it shall on the application of any judgment-debtor………amend the decree accordingly or enter satisfaction as the case may be. The ‘Court’ mentioned in the section has to be identified. I see no reason to identify the court mentioned in the section as the execution court. I feel that there is intrinsic guidance in the section itself. It is also pertinent to note that the Kerala Agriculturist's Debt Relief Act provides for a definition of court wherein it is stated thus:

“court” means any civil court having jurisdiction to entertain a suit for the recovery of a debt”

16. In Ashalata Debi v. Jadu Nath (A.I.R 1954 S.C 409) the Supreme Court observed, that when an application has to be filed in an execution court and if that application has been filed on the original side of the court it is possible to consider that application as one filed in the proper court, viz. the execution court. The relevant observation in the above decision reads thus:—

“The only thing competent to the mortgagees under the terms of the new decree was to apply for executions of the decree on default committed by the mortgagors and the applications made by the mortgagees in the Court of the Third Sub-ordinate Judge at Alipore were really applications for execution of the decree though not couched in the proper form and could be treated as such if they were treated as such it is clear that the orders passed on such applications for execution were appealable and no objection could be sustained on the ground that no appeals lay against these orders. Treating these applications therefore as application for execution we see no substance in this contention of the appellants.”

17. Perhaps, the converse case is applicable in this case. The Full Bench (1978 K.L.T 262). I fear has not given due importance to the aspects now I have spotlighted. In 1975 K.L.T 819 an almost identical provision now I am considering has been the subject-matter of discussion. I feel that I should quote paragraph 2 of the judgment to understand the full scope and implication of the dictum laid down in the decision.

“2. Before the appeal is considered on the merits, it is necessary to dispose of a preliminary objection raised by the respondents' counsel that the appeal and second appeal from the order setting aside the sale under S. 6 of a Act, 9 of 1967 is not maintainable. According to him, Act, 9 of 1967 does not confer any right of appeal against the order passed thereunder. The appellant's counsel in answer stated that the order passed under S. 6 of the Act is an order setting aside a sale held in execution of a decree and therefore is an order under S. 47 C.P.C and amounts to a decree within the meaning of the definition of ‘decree’. The answer of the appellants is well founded. The sale was held in execution of the decree in O.S No. 1804 of 1959. The petition to set aside that sale, though filed under S. 6 of the Act, is a petition to vacate the sale held in execution. The order of satisfaction of the decree passed on the confirmation of the sale is sought to be vacated and the property taken delivery of by the auction purchaser in execution of the decree in that case is sought to be re-delivered after setting aside the sale. There are matters relating to execution, discharge and satisfaction of the decree and the dispute though is now between the auction purchaser and the assignees of the defendant, comes within the scope of S. 47 inasmuch as an auction purchaser is also deemed to be a party for the purpose of that section. Hence the order amounts to a decree for the purpose of appeal and second appeal. Further, even viewing that petition, to set aside the sale as an independent petition, that being one allowed to be filed in the court as constituted under the Civil Courts Act, the provisions of the C.P.C, since they are not expressly or impliedly excluded to a proceeding under the Act, will apply to the case. The order under attack conclusively determines the rights of the parties as provided for in the definition of a ‘decree’ in S. 2(2) of CPC and consequently the appeal and second appeal are maintainable. Hence preliminary objection is over-ruled.”

18. It is important to note that though Viswariatha Iyer, J. has held that the order amounts to a decree for the purpose of appeal and second appeal, on the basis of section 47 C.P.C as then stood, with equal importance. His Lordship observed that viewing the case in a different angle, the petition to set aside the sale as an independent petition and that being one allowed to be filed in the courts constituted under the Civil Courts Act, and are not expressly or impliedly excluded the procedure of the Civil Procedure Code, the order under attack conclusively determines the rights of the parties as provided for in the definition of a decree in section 2(2) C.P.C and consequently an appeal and second appeal are maintainable. The learned Judge over - ruled the preliminary objection regarding the maintainability of the appeal. The learned counsel for the appellants submitted before me that the observation in the quote “Further even viewing……….the appeal and second appeal are maintainable” is only an obiter and that the decision was rendered by Viswanatha Iyer, J. on the basis of the deeming part of the-definition of the decree. The counsel very strongly submitted before me that the last part of the quote cannot be given any importance. I cannot agree. Both parts are of equal importance and I am not justified in omitting to consider it since it has been said as a second reason for holding that the preliminary objection has to be over-ruled. For two equally important reasons, the preliminary objection that no appeal is maintainable has been disposed of.

19. Now, I shall turn to another exposure of the section. What is really intended by the Legislature by enacting section 13B of the Act? To my mind it is clear and plain that the Legislature wanted to give a special right to certain classes of quantum tenants whose, properties have been sold for arrears of rent of course under certain prescribed conditions. It is really a grant of right. In fact, the first part of section 13B of the Act is a declaration of that right conferred by the law and the latter parts, to a certain extent, deal how that right has to be operated. In order to establish a right over which there can be dispute, the Legislature used to grant the power to adjudicate the dispute with the court and when a court is enjoined with such power, normally depending upon the position in the hierarchy of the courts, an appeal and a second appeal lie as the case may be. Certainly, the application under section 13B is a speedy and effective remedy for establishing the right conferred under section 13B Section 13B does not provide where exactly the application has to be filed, though a time limit is prescribed for invoking such a provision. In this context, the absence of not specifying a particular court in section 13B of the Act is of some importance, when significantly the Legislature thought of giving a very clean and clear definition of court in section 2(6) of the Act thus:—

“‘Court’ means, where a particular court is not specifically mentioned, the court having jurisdiction under the Code of Civil Procedure, 1908, to entertain a suit for the possession of the holding or part thereof to which any legal proceeding under this Act relates.”

20. I feel that the application under section 13B has to be filed in the court that having jurisdiction to entertain the suit for possession of the Holding and that application can be filed as an application in the original suit. If this view is correct, everything falls in line, the application is before an ordinary civil court in a suit and there is an adjudication of that application which, so far as the court expressing it, conclusively determines the rights of the parties with regard to a new right given under section 13B of the Act and so it is a decree and the same is appealable. Though the application has been filed before the execution court, following the decision reported in A.I.R 1954 S.C 409. I hold that it is possible to treat the application as an application in the suit before the trial court. In the circumstances, I hold that the objection that no appeal is entertainable against the orders not sustainable.

21. Now, I shall consider the merits of the case. The appellate court has found that at the time when the application was filed, Ayidru had no leas hold interest, in the property since he has transferred that fit right to Moideen under Ext. B1 and as such he was incompetent to file an application under section 13B of the Act. The fact that there was a statement in the sale proclamation in regard to the encumbrance that the sale by Ayidru to Moideen is of no consequence will not give a right to Aydiru to say that he continued to be a tenant for the purpose of section 13B of the Act. This is the view taken by the appellate court. I feel what the appellate court has said is correct. So, I hold that the application filed by Ayidru is not maintainable.

22. In the result, the appeal is only to be dismissed. I do so. In the circumstances of the case, I make no order as to costs.