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Lachman Vs. Jarbandhan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Reported inAIR1928All193; 108Ind.Cas.229
AppellantLachman
RespondentJarbandhan
Cases ReferredWebb v. Stenton
Excerpt:
- - in that case it was clearly held that what was attached was a right to certain profits which might never become due, whereas in the present case there can be no question that at the date of the attachment there was a certainly that the rent would became due......attachment was made, had not become payable by the subtenant, the period in respect of which the rent was attached being still incomplete. the judgment-debtor accordingly objected that this rent was not covered by the provisions of section 60, civil p.c., which permits attachment of debts and other saleable property moveable or immovable belonging to the judgment-debtor. the first court held that as the rent had become due at the date when the objection was heard, it was immaterial that the attachment was made before the rent had become due. it also held that there was no reason why rent could not be attached in advance, i.e., before it became due.2. in appeal, the district judge upheld the contention of the judgment-debtor on the ground that there was the authority of a bench of this.....
Judgment:

Ashworth, J.

1. This second appeal arises out of an objection made by a judgment-debtor of the present appellant to the attachment of certain rent due to him as occupancy tenant, from his subtenant. At the date of the attachment, the rent of which attachment was made, had not become payable by the Subtenant, the period in respect of which the rent was attached being still incomplete. The judgment-debtor accordingly objected that this rent was not covered by the provisions of Section 60, Civil P.C., which permits attachment of debts and other saleable property moveable or immovable belonging to the judgment-debtor. The first Court held that as the rent had become due at the date when the objection was heard, it was immaterial that the attachment was made before the rent had become due. It also held that there was no reason why rent could not be attached in advance, i.e., before it became due.

2. In appeal, the District Judge upheld the contention of the judgment-debtor on the ground that there was the authority of a Bench of this Court, that profits not yet accrued due were not susceptible of attachment, namely, the case of Sher Singh v. Sri Ram [1903] 30 All, 246.

3. In this appeal it is submitted that this case was not relevant to the present facts. In that case it was clearly held that what was attached was a right to certain profits which might never become due, whereas in the present case there can be no question that at the date of the attachment there was a certainly that the rent would became due. Reference, however, in that decision was made to the English case of Webb v. Stenton [1883] 11 Q.B.D. 518. In that case the Queen's Bench held in effect that a debt involves (a) an obligation incurred by the debtor, (b) a liability on the part of the debtor to pay for that obligation at a certain date. Until the obligation had been fully incurred, there is no debt. 'Accrued' did not mean that the obligation was incomplete but merely that the date for payment had not arrived. Debitum in presenti, solvendum in future. Rent in respect of a period still in existence is thus not a debt at all as the obligation is not complete.

4. This decision equally disposes of the argument that this rent could be attached, if not as a debt, still as saleable property, that is to say 'an actionable claim.' An actionable claim is 'a claim to a debt existent, accruing conditional or contingent'. The last four words do not alter the situation, if there is no debt.

5. It has been suggested that the 'saleable property' is not the rent, but the title to recover it for the period in question. A title (unlike a debt) accrues when the instrument creating it has been executed. But it is not the title that the decree-holder purported to attach. Moreover, an occupancy tenant cannot transfer his title except by a sub-lease for five years (in such case he gets the rent and his landholder is not prejudiced) under Sections 23-34, Tenancy Act.

6. For these reasons I hold that the lower appellate Court was correct in its decision, and would dismiss the appeal with costs.

Mukerji, J.

7. I entirely agree with my learned brother that the word 'debt,' as used in Section 60, Civil P. C, must be confined to a debt-in the ordinary sense of the word, that is to say an existing debt. It appears to me that the several articles that have been declared by the opening portion of Section 60 as liable to attachment and sale have been given only by way of an illustration. The important words are, 'all saleable property,, moveable or immovable, belonging to the judgment-debtor...' these are liable to be attached and sold. It is only by way of illustration that the words, 'lands, houses, etc,' have been added. If this view of mine be correct, the word 'debts' could not have been used only as illustrating what is liable to be attached and sold. A person may be a debtor under a bond, although the money due under the bond does not accrue payable till a future date; for the liability is there to pay. In the present case, it cannot be said that at the date of the attachment the sub-lessee was 'in arrears' to the occupancy tenant, the judgment-debtor. If the sub-lessee was not in arrear, it cannot be said that there was a debt due by him to the occupancy tenant. If, at the date of the attachment, the sub-lessee was dispossessed, he could not be called upon to pay. His liability was not complete till he had held for the required period.

8. As regards the question whether the right to recover the rent could or could not be attached and sold under the latter portion of Section 60, Civil P.C., I need not add anything to what has fallen from my learned brother.


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