JUDGMENT
Maharajan, J.
1. This appeal is directed against the judgment of Gokula-krishnan, J. and arises under the following circumstances. The plaintiffs, who are the appellants before us, instituted a suit against the respondent-defendant for recovery of possession of the suit leasehold and of arrears of rent due from the respondent. The respondent raised a number of objections, but ultimately, the suit was compromised by the parties and a decree was granted in terms thereof. According to the compromise filed by the parties, the arrears of rent due by the defendant-tenant was fixed at a particular figure, and he was directed to pay the same within a prescribed period. The compromise further provided that the tenant might be in enjoyment of the leasehold till (kumbam crop), and after harvesting the kumbam crop appropriating the produce thereof and after receiving from the landlords (plaintiffs) Ihe sum of Rs. 350 which the tenant had paid him as advance, the tenant should vacate the leasehold. There was another clause in the compromise which provided that in case the defendant-tenant failed to comply with the terms of the compromise, it was open to the plaintiffs to deposit into Court the advance of Rs. 350 due to the defendant and obtain delivery of possession of the leasehold through Court. This decree was granted on 9-1-1959. On 11-3-1963, that is to say, after the period prescribed in the compromise was over, the plaintiff filed E. P. 191 of 1963 in the Court of the District Munsif, Nagarcoil, for delivery of possession of the leasehold in execution of the compromise decree.
2. The execution was resisted by the judgment-debtor on the ground thai he was protected from eviction under the provisions of the Holdings (Stay of Execution Proceedings) Act, 1950 (Travancore-Cochin Act VIII of 1950) and that he should not be evicted unless he committed any wilful default in the payment of rent or any wilful act of waste. The decree-holder, on the other hand, contended that the judgment debtor was not entitled to the benefit of the Travancore Cochin Act VIII of 1950 because he had waived his rights thereunder by entering into the compromise.
3. The learned District Munsif dismissed the execution petition on the ground that the judgment debtor could not validiy contract himself out of the statute. On appeal, the learned District Judge of Nagarcoil, held that under the compromise decree, the judgment debtor had waived the rights conferred upon him under Act VIII of 1950, and consequently he reversed the order of the learned District Munsif and directed the executing Court to restore the execution petition and order delivery of possession on a date to be fixed by the executing Court. As against this order of the learned District Munsif, a civil miscellaneous second appeal was preferred. The learned Judge allowed the said civil miscellaneous second appeal, reversed the order of the District Judge and restored that of the District Munsif. It is against this judgment that the present Letters Patent Appeal has been preferred.
4. The main question that arises for consideration is, whether in view of the provisions of Section 4 of the Travancore-Cochin Act VIII of 1950 and the admissions contained in the compromise decree, the Court should desist from executing the compromise decree and from ordering delivery of possession of the property in favour of the decree-holder. The preamble to the Travancore Cochin Act VIII of 1950 runs as follows:
“Whereas it is deemed expedient to stay proceedings in execution of certain decree in civil courts for eviction from holdings in Travancore, it is hereby enacted as follows:–”
We may next refer to Section 4 of the Act, which, as amended from time to time till 1971. runs as follows:–
“Notwithstanding any law to the contrary, proceedings in execution of a decree in a suit for the recovery of possession of holding shall, as far as they relate to the delivery of possession of the holding, be stayed for a period of 23 years, and 6 months from the date of commencement of this Act :
Provided that nothing contained in the section shall preclude the Court–
(a) from ordering the delivery of possession Of the holding to the decree-holder if the Court is satisfied either that the lessee has committed intentional or wilful acts of waste or that he has failed to pay the rent of the holding which has accrued due after the commencement of this Act; or (b) from granting any other appropriate relief to which the decree-holder may be entitled....................."
But for the statute, it is the duty of the Court to execute, at the instance of the decree-holder, a decree obtained by him for delivery of possession of the holding. By virtue of the provisions made in Section 4 of the Travancore Cochin Act VIII of 1950, proceeding in execution of a decree in a suit for recovery of possession of a holding shall stand stayed for the prescribed period. If before the expiry of the statutory period, a decree-holder applies for delivery of possession, it would be the plain duly of the Court to refuse to direct delivery of possession, but the proviso to Section 4 makes it clear that nothing in Section 4 shall preclude the Court from ordering delivery of possession if the Court is satisfied either (1) that the lessee has committed intentional and wilful acts of waste, or (2) that he has failed to pay rent of the holding which has accrued due after the commencement of this Act. If the Court is satisfied that either of these conditions exists, it is its duty to direct delivery of possession and refuse to apply the embargo contained in the main body of Section 4. Here, no question of the lessee having committed intentional or wilful acts of waste arises.
5. Admittedly, however, he has failed to pay the rent for the holding, which had accrued due after the commencement of the Act. The Act commenced sometime in April 1971. The rent, which the tenant has failed to pay. is the rent of the holding which has accrued due after the commencement of the Act. The compromise itself was entered into on 9-1-1959 and it admits that rent arrears were due by the tenant on that date. There can, therefore, be little doubt that the tenant has failed to pay the rent of the holding, in which case the embargo prescribed in Section 4 upon execution of the decree would stand ipso facto lifted. The learned Judge would appear to think that the failure to pay rent must also be wilful. We are unable to agree. The language of the proviso is clear and unambiguous. The words ‘intentional and wilful’ qualify only acts of waste, and not the failure of the tenant to pay the rent. So far as acts of waste are concerned, it is necessary for the courts to consider whether those acts are intentional and wilful and unless the court is satisfied that those acts arc intentional and wilful, it shall refuse to direct delivery of possession. But so far as the failure of the tenant to pay the rent of the holding is concerned, the failure simpliciter is sufficient to disentitle the tenant to the benefits of the Act. It need not be either intentional or wilful and the Court is not called upon to consider whether it is wilful or intentional. The moment the Court is satisfied of the physical fact of the failure of the tenant to pay the rent of the holding, it shall direct delivery of possession notwithstanding the Travancore-Cochin Act VIII of 1951. In this case even without a decision of the Court. wE have the admission of the parties in the compromise to the effect that the tenant had committed default in the payment of the rent due for the period subsequent to the commencement of the Act, and the compromise, which contains this admission has been recorded by the court and a decree has been granted in terms thereof. It is. therefore, unnecessary for the courf in the teeth of this admission, to embark upon any enquiry in this case as to whether there has been a failure on the part of the tenant to pay the rent. Ex facie, the compromise decree makes out his failure to pay rent. We. therefore, disagree with the learned Judge and hold that as the lessee has failed to pay the rent of the holding, he has become disentitled to the benefits of the Act. and the court is bound to order him to deliver possession of the leasehold.
6. The learned Judge appears to have accepted the argument that the court has under Section 4 a discretion to order delivery of possession or not. We are unable to agree with this view. The moment the court is satisfied that either of the two conditions mentioned in the proviso extends, the statutory embargo prescribed in the section would automatically stand lifted and the court has no discretion whatever to stay execution. One of us, Kailasam, J. has in Neelakanta Pillai v. Chellian Nadar, (1972) 85 Mad LW 478 construed the effect of this section in the light of a ruling of the Supreme Court and has observed as follows:–
“The Supreme Court in C. A. 469 to 474 of 1965 in considering the contention that the proviso to Section 4 only gives a power to the execution court to deliver possession and does not contain any mandate that, if there is any failure to pay arrears of pattern, the execution court must direct delivery of possession, held that once the bar for execution of the decree by delivery of possession enforced by the principal clause of Section 4 of the Travancore Cochin Act VIII of 1950 was removed, because of the applicability of the proviso, the execution court had the duty to give full effect to the decree, the execution of which was sought from it by the respondent and that the decree gives an absolute right to the respondent to dispossess the appellant for failure to pay the future pattom and once the appellant committed a default, the respondent was entitled to dispossess him and there was no reason why the court could refuse to order delivery of possession.”
We, therefore, disagree with the view of the learned Judge that any discretion vests in the court to refuse to direct execution once it is proved that there has been either intentional or wilful acts of waste on the part of the lessee or that the lessee has failed to pay the rent accruing due after the commencement of the Act. It is unnecessary to consider the argument whether the tenant could contract himself out of the benefits of the Travancore-Cochin Act VIII of 1950. In this case, he did not in fact contract himself out of the benefits that he obtained under the Act. He did not say ‘I am entitled to the benefits of the Act VIII of 1950, but I am waiving those benefits in consideration of certain benefits the decree-holder is giving me. What he did was to admit that he had committed default in the payment of rent and to agree with the landlord in the quantification of the amount of rent and to get from the landlord the con-cession of remaining in the leasehold for some more years and enjoying the same, despite his failure to pay the arrears of rent. It is thus found that there is no question of the tenant having contracted himself out of the benefits of the Act. On the other hand, it was the landlord, who waived the benefits of the proviso to Section 4 and allowed the tenant to remain in the leasehold for some more time, instead of enforcing his right to evict him under the proviso, despite his having failed to pay the prescribed rent. There is, therefore, no basis for the view that under the compromise, the judgment debtor waived the benefits of the Aci. The resulting position is that inasmuch as it is admitted (and this admission is incorporated in the compromise decree itself.) that the tenant has failed to pay rent for the holding, he will not be entitled to any stay under Section 4 of the Act, and it is the duty of the court to allow the execution petition of the decree-holder and direct delivery of possession in pursuance thereof.
7. We, therefore, allow this Letters Patent Appeal, set aside the judgment of the learned second appellate Judge, and restore that of the first appellate Court, and direct delivery of possession in favour of the decree-holder by 1st May 1974. Payment of batta will be made in the executing court. There will be no order as to costs.