The main legal point established in the judgment is that an appeal is available from a decision under S.5(2) of the Malabar Tenancy (Amendment) Act, 1956, and that statutes giving the right of appeal are liberally construed in furtherance of justice.

1. The appellant in this Second Appeal was the plaintiff in O.S. No. 890 of 1942 of the court of the Munsiff of Badagara. In that suit he sought and obtained the recovery of possession of an item of property under the Malabar Tenancy Act, 1929.

2. The suit was decreed on 13-9-1948 and possession was taken from the respondents on 23-10-1943. After the passing of the Malabar Tenancy (Amendment) Act, 1956, the respondents applied for a restoration of possession by an application under S.5(2) of that enactment, I.A. No. 101 of 1957 in O.S. No. 890 of 1942.

3. The application was allowed and the appellant before us filed A.S. No. 352 of 1959 of the court of the Subordinate Judge of Badagara. That appeal did not succeed. It was dismissed on the ground that no appeal was available from a decision in an application under S.5(2) of the Malabar Tenancy (Amendment) Act, 1956. This Second Appeal challenges the correctness of that decision.

4. The sole question for determination in the second appeal is whether an appeal is available from a decision directing a restoration of possession in an application under S.5(2) of the Malabar Tenancy (Amendment) Act, 1956. In other words the question for determination is whether such a decision will constitute a decree as defined in S.2(2) of the Code of Civil Procedure, 1908, that is, whether it embodies "the formal expression of an adjudication which, so far as the Court expressing it, conclusively determines the right of the parties with regard to all or any of the matters in controversy in the suit."

5. S.5(2) of the Malabar Tenancy (Amendment) Act, 1956, reads as follows:

"Where before the commencement of the Malabar Tenancy (Amendment) Act, 1954 (Madras Act VII of 1954), a landlord has obtained possession of a holding in execution of a decree passed by a court on or after the 1st July 1942 under clause (5) or clause (6) of S.14 or under clause (5) or clause (6) of S.20 of the Malabar Tenancy Act, 1929 (Madras Act XIV of 1930), and such decree would not have been passed if the principal Act as amended by the Malabar Tenancy (Second Amendment) Act, 1945 (Madras Act XXIV of 1945), the Malabar Tenancy (Amendment) Act, 1951 (Madras Act XXXIII of 1951), and this Act had been in force at that time the tenant shall be entitled to be restored to the possession of the holding with all the rights and subject to all the liabilities of a tenant if he makes an application in that behalf in the court which passed the decree within twelve months of the commencement of this Act:

Provided that before such restoration is effected, the tenant shall be bound to return to the landlord, (i) the value, if any, paid by the landlord to the tenant for his improvements, (ii) the kanartham, if any, and (iii) the value of improvements, if any, effected bona fide by the landlord, between the date on which he obtained possession of the holding and the date on which possession thereof is restored to the tenant."

It is quite possible to say that the application contemplated by the sub-section is a proceeding in the suit itself in which the dispossession was decreed and that the adjudication on such an application constitutes, in substance and in effect, the final adjudication of a matter in controversy in that suit, namely, the question as to whether the landlord was entitled to recover the possession of his property from his tenant. In this view the adjudication on I.A. No. 101 of 1957 in O.S.No. 890 of 1942 will be a decree as defined in S.2(2) of the Code of Civil Procedure, 1908, and it should follow that A.S. No. 352 of 1959 before the Subordinate Judge was competent and that this Second Appeal should be allowed and the learned judge directed to hear and dispose of the appeal on its merits.

6. Madhavan Nair, J. has taken the view that an appeal from a decision in an application under S.5(2) of the Malabar Tenancy (Amendment) Act, 1956, is competent and Velu Pillai, J., that it is not. The very fact that two eminent jud