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Petitioner: BON BEHARY ROY VS Respondent: DHIRENDRA NATH ROY
P
P. L. D. 1951 Dacca 100
Before Ispahani and Akbar, JJ.
BON BEHARY ROY‑Appellant
versus
DHIRENDRA NATH ROY and others‑Decree‑holder
Appeal against the order of Subordinate Judge of Zilla Jessore, dated 35th February 1946, in Miscellaneous Case No. 1 of 1946, decided on 8th March 1951.
(a) Bengal Tenancy Act (VIII of 1885), S. 168‑A (1) (a) Proviso applies even if execution application not the first or initial, or even if tenancy expired before section came into operation.
The proviso to section 168‑A (1) (a) will apply even if the application for execution referred to in it is not the first or initial application, and the said proviso is attracted even if the tenancy expires before the said section came into operation.
48 C. W. N. 837, 49 C. W. N. 389; 49 C. W. N. 620 ; 46 C. W. N. 540 ; 46 C. W. N. 684 ; 48 C. W. N. 220 ref.
Moti Lal Acharyya, for Appellant. Birendra Kumar De, for Respondent.
ISPAHANI, J.‑The appellant is judgment‑debtor‑ No. 1 who has filed this appeal against the order, dated the ,25th of February 1946, passed by the Subordinate Judge of Jessore in Miscellaneous Case No. 1 of 1946, arising out of Rent Execution Case No. 23 of 1945.
The application under section 47 of the Code of Civil Procedure read with section 168‑A of the Bengal Tenancy Act was filed against judgment‑debtor No. 1 alone in execution of the decree in Rent Suit No. 46 of 1934, passed on the 29th of September 1934. In that decree one of judgment‑debtors was the decree -holder himself. The decree‑holder is the bolder of 16 annas zemindary interest in respect of a putni tenure, and the said decree was obtained for arrears of rent. The decree‑bolder put the decree into execution on several occasions, but the entire decretal dues were not realised. Thus he started the present execution case against judgment‑debtor No. 1 only in respect‑ of other properties and not in respect of the tenure in question as it had ‑merged as a result of purchase by the decree‑holder in a sale held on the 15th of May 1940, under the provisions of Regulation VIII of 1819. As to the amount realizable under the decree, the decree‑holder has given credit against himself in respect of his 16th share in the putni for arrears of rent for which the decree under execution was passed and has sought execution against the appellant alone in respect of his other properties.
Various objections were raised by the appellant against the execution of the decree. The first one was that as the decree- holder himself was one of the judgment‑debtors, the decree could, not be executed against the other judgment‑debtors. Secondly, that in view of the provision of the decree that in case the decree- holder sought to realise the decretal dices by proceedings against the properties of the judgment‑debtors other than the defaulting tenure, the restrictions of Order 21, rule 16 of the Code of Civil Procedure would come into operation and the present execution must fail. Thirdly, that the present execution was hit by section 168‑A of the Bengal Tenancy Act and .the proviso to that section did not apply to the facts of the present case. The learned Subordinate judge ‑has repelled the objections raised on behalf of the Appellant and hence this appeal.
On behalf of the appellant Mr. Motilal Acharyya ‑has raised some of the objections taken in the executing Court. The first objection is that in view of the provisions of section 16E‑A of the Bengal Tenancy Act, the Court below should have: held that execution with regard to properties other than the tenure itself in arrears was not maintainable. The second branch of his argument is that the words "before an application is made for execution of such a decree" in the proviso refer to the first or initial application for execution and not to a subsequent execution for recovery of decretal dues of any unrealised balance of the decree. He has cited some authorities in support of his argument. In Satish Chandra Hui and. others v. Sudhir Krishna Ghose and another. (4J C. W. N. 540), Nasim Ali and Pal JJ., held‑ that section 168‑A (1) (a), read with and as qualified by the proviso, applies and prohibits the sale of other properties of the judgment. debtor in all cases except where the tenancy itself, as distinguished from merely the judgment‑debtor's interest therein, has ceased to exist. They further held that the proviso is not limited to cases where the defaulting tenancy is for a fixed period : and the words "term of the tenancy expires , mean and refer to the extinction as‑cessation of the tenancy itself, the word "term" meaning the tenancy in the tenure or holding. 'In Atul Chandra Chakravarti and others v. Upendra Narayan Mukhopadhyaya, (46 C. W. N 684) Mukherjea and Blank JJ.. held that the words before an application is made for execution of such a decree" in the proviso to section i68‑A (1) (a) refer to the first or initial application for execution and the proviso does not apply to the case where a tenure is sold in execution of the rent decree itself (whether before or after the section has come into force) and subsequent execution is taken out by the landlord for any unrealised balance of the decree. They held further that section 168‑A applies to procee dings pending at the time when the Section came into force, provided no sale bad yet taken place. In Sm. Swarnamanjuri Dassi v. Fakir Chandra Karar and others, (48 C. W. N. 220), Roxburgh and Blank JJ., held that the proviso permits the landlord to proceed against other properties of the judgment‑debtor if he can show that the tenancy has expired after the commencement‑of the Bengal Tenancy Amendment Act, 1940, and., before, the application made to proceed against such property. In coming to their decision they considered the cases reported in 46 C. W. N. 540 and 684.
As against these authorities our attention has been drawn by Mr. Birendra Kumar De to the following cases : In Lakshan Chandra Roy Choudhury and another v. Birendra Kumar Singha and another, (48 C. W. N. 837) Mitter and Sharpe JJ., held that in a case where the term of the tenancy expired after the commence ment of the Bengal Tenancy Amendment Act, 1940, by sale of the tenure or holding in execution of another decree (or otherwise than in execution of a decree now sought to be executed, a g., by a putni sale for subsequent arrears), the application referred to in the proviso to section 168‑A (1) (a) means the particular application for execution against other properties of the judgment‑debtor, which but for the proviso, would have been barred under subsection (1) (a). They held, therefore, that in such a case an application for execution against other properties of the judgment‑debtor, if made after the expiry of the term of the tenancy, is not barred under section 168‑A (1) (a), although prior to the coming into force of that section the decree‑holder may have made a similar application and whether that application was fructuous or infructuous. They held further that the words "term of the tenancy expires" in the proviso to section 168‑A (1) (a) mean and refer to the extinction or cessation of the tenancy itself and not merely of the interest of the judgment‑debtor in the tenancy, and that merger is one of the methods by which a tenancy can expire within the meaning of the proviso. In coming to this decision their Lordships referred to the cases reported in 46 C. W. N. 540 and 684 and 48 C. W. N. 220. The matter has been set at rest by Khundkar and Biswas JJ., in Amrita Lal Chatterjee v. Minindra Nath Biswas and others, (49 C. W. N. 389). They held that the proviso to section 168‑A (1) (a) of the Bengal Tenancy Act applies where, before the particular application for execution against other properties of the judgment‑debtor which, but for the proviso, would ‑have been barred under subsection (1) (a) the term of the tenancy expired, (i) although such application may not be first application for execution and there may have been other applications before the expiry ; (ii) although such expiry may have taken place before the commencement of the Amending Act, introducing section 168‑A ; (iii) although the application itself may have been made before such commencement and may have been pending at .the date thereof ; (iv) provided, however, that the expiry was not caused by purchase of the tenancy by the decree-holder himself in a previous execution of the same decree. Their Lordships discussed and considered the cases reported in 46 C. W. N. 684, 48 C. W. N. 220 and. 837. In Sree Sree Iswar Radha Ballav Jew Thakur v. Mahima Ranjan Roy and others. (49 C. W. N. 620). Mukherjea and Ellis JJ., held that the proviso to section 168‑A (1) (a) of the Bengal Tenancy `Act would apply even if the application for execution referred to in it was not the first or initial application. They held further that to attract the proviso to section 168‑A (1) (a) of the. Bengal Tenancy Act it is not necessary that the tenancy should expire after the section came into force The cases reported in 46 C. W. N. 684, 684,48 C. W.‑N. 220 and 837 and 49 C. W. N. 389 were considered in coming to their decision.
There is no dispute that the defaulting tenure in respect of which the rent decree was passed was sold on the 15th May 1940, under the provisions of‑ Regulation VIII of 1819, and was purchased by the decree‑holder. By reason of such purchase there was merger of the tenure in the zamindari of the decree‑holder, and the tenure lost its separate existence from that time. Thus the term of the tenancy expired when the tenure was extinguished on the 15th of May, 1990, by the purchase of the decree‑bolder in the sale held under the provisions of Regulation VIII of 1819 before section 168‑A of the Bengal Tenancy Act came into existence by the Bengal Tenancy (Amendment) Act, 1940, which came into force on the 9th January 1941. It is also admitted that prior to the present; execution proceeding and prior to the coming into force of the Amending Act of 1940, the decree was put in execution on many occasions, and some balance of the decretal dues is still unrealised.
Where the term of a tenancy expires in any manner other than by surrender, for example, by the merger of the tenure with the superior interest, the provisions of the proviso to section 168‑A (1) (a) are attracted and the decree‑holder's remedy is to proceed against the other properties of the judgment‑debtor for the decretal dues or the unrealized balance of the same. The said proviso will apply even if the application for execution referred to in it is not the first or initial application and it is attracted even if the tenancy expires before the said section came into operation.
We respectfully agree with the reasonings contained in the cases of Amrita Lal Chatterjee and Sree Iswar Radha Ballav Jew Thakur, (49 C. W. N. 389 and 629, respectively) and follow the same and hold that the proviso to section 168‑A (1) (a) will apply even the application for execution referred to .in it is not the first or initial application, and the said proviso is attracted even if the tenancy expires before the said section came into operation. In these circumstances, the first objection raised by Mr. Acharyya must be rejected.
The next objection of Mr. Acharyya is that having regard to the express direction in the decree that the provisions of Order 21, rule 16 of the Civil Procedure Code will apply in the event of the decree‑holder intending to execute the decree as a money decree against some of the judgment‑debtors, it should have been held that in view of the proviso to Order .21, rule 16 of the Code it cannot be executed against the Appellant. Rule 16 of Order 21 of the Code of Civil Procedure is as follows :‑
"Where a decree, or, if a decree has been passed jointly in favour of two or, more persons, the interest of any decree‑holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply f6r execration of the decree, to the Court which passed it ; and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree‑holder."
The second proviso to that section is as follows :‑‑
"provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others."
In the last paragraph of the decree the following provision is to be found :‑‑
"Let it be stated that if the decree has to be executed against the mahal in default, then the execution may be carried on the entire decretal amount. If the decree is to be executed against the defendants personally or against any one of the defendants then the provisions of Order 21, rule .16 of the Code of Civil Procedure shall apply."
Mr. Acharyya's contention is that in view of the provisions of Order 21, rule 16 of the Code and that portion of the decree to which reference has been made above, the decree‑holder cannot execute the decree against the other‑judgment‑debtors, because the decree‑holder, being one of the judgment‑debtors himself having 1/6th shares, the decree must be deemed to have been transferred to him. It is difficult to understand how the provisions of Order 21 rule 16 can come into play in respect of the decree which to all intents and purposes was a rent decree. The decree was obtained by the zamindar in his own right as sole landlord or proprietor for arrears of rent of the putni which has now ceased to exist. He has applied for execution not as a transferee or assignee of the decree from any other person but in his own right. He has not got the decree transferred or assigned to him as a judgment debtor: Rule 16 of Order 21 of the Code applied to cases of transfer by assignment in writing or by operation of law and does not apply to a case like the present one.
In these circumstances we ate of opinion that the provisions of Order 21, rule 16 of the Code do not apply. It is not known bow that provision was‑incorporated in the decree and it is not correct for' Mr. Acharyya to argue that the executing Court has gone behind the decree. As executing Court the learned Sub ordinate judge construed the words incorporated in the decree and has come to the conclusion and, in our opinion, rightly that the provisions of Order 21, rule 16 of the Code do not apply to the facts of the present case. On this ground the objection raised by Mr. Acharyya must be rejected.
The last objection of Mr. Acharyya is that the Court below was wrong in holding that the appellant is barred by Explanation IV to section 11 of the Code of Civil Procedure from raising the plea as to the applicability of the provisions under Order 21, rule 16 of the Code of Civil Procedure although the same was specifically' mentioned in the decree itself. It is not necessary for us, to record our opinion on this objection, as we have found against the appellant on the first two objections.
For the reasons stated above, this appeal is' dismissed with costs.
AKBAR, J.‑I agree.
A. H. Appeal dismissed.