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Biswanath Naik and ors. Vs. Jaharali Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtOrissa High Court
Decided On
Case NumberSecond Appeal Nos. 276 and 277 of 1963
Judge
Reported inAIR1966Ori29
ActsTenancy Law; Orissa Tenancy Act, 1913 - Sections 31B and 31B(2) - Schedule - Article 2; Code of Civil Procedure (CPC) , 1908 - Sections 9 - Order 21, Rule 58
AppellantBiswanath Naik and ors.
RespondentJaharali Khan and ors.
Appellant AdvocateL.K. Dasgupta, ;H.M. Das and ;A.K. Das, Advs.
Respondent AdvocateR.N. Sinha, ;G. Rath, ;J.K. Mitra and ;S.C. Ghosh, Advs.
DispositionAppeals allowed
Cases ReferredSecy. of State v. Mask
Excerpt:
.....246, are not good law]. - 2 is a money decree is well founded in law. the distinction between 'rent decree' and 'money decree' is well known. clearly the decree would have the effect of money decree and not of rent decree. the view of the courts below confining the applicability to rent decrees only and excluding money decree from its operation is clearly erroneous in law. sinha is therefore well founded. he placed reliance under section 9. civil procedure code, and the well known authority in secy. the legal position under the general law is well settled that ordinarily a person, who is not a party to the decree cannot be affected by it. the legislature was conscious of this well accepted legal position. 15. doubtless the validity of the decree can be questioned on general grounds,..........and two others. the entire body of landlords consisting of biswanath naik and two others filed rent suit no. 4457 of 49-50 on 12-4-1949 against narhari alone for recovery of bhag due tor the years 1955 and 1956 v. s. corresponding to 1948 and 1949 (see ext. c). they obtained an ex parte decree (ext. 2) on 15-5-1950 for recovery of rs. 366-14-9. execution case no. 671/52-53 was filed for realisation by sale of 2.651 acres of land of which the disputed lands are a part (see order-sheet dated 7 7-1952 exts. 1 and 1/a)3. on 16-3-1953 jaharali, gaharali and jema dei filed an application under order xxi, rule 52, civil procedure code claiming the disputed lands. on 28-3-1953 the rent court directed the objectors to be impleaded as judgment-debtors in the execution case and asked them to.....
Judgment:

G.K. Misra, J.

1. Narahari Mohapalra defen dant 4) was the occupancy Dhulibhag tenant of an area of 3.278 acres of land in khala No. 231 under Touzi No. 5689 in village Gothada (see C. S. record of rights of the year 1929, Ext H.) Though he was liable to pay Dhulibhag rent, he under separate arrangement will the then landlords commuted it to cash rental of Rs. 15-4-0 and used to pay cash rents and obtain receipts. He transferred 410 and 200 decimals of land in plot No. 961 under the aforesaid Khata by two registered Kabalas (Exts. 3/c and 3/b) dated 5-4-1937 and 18-10-1938 for Rs. 200 and Rs. 100 respectively in favour of Jabarali and Gaharali who were plaintiffs in Title Suit No. 216 of 1953 out of which second appeal No. 276 of 1963 arises. The lands covered by Exts. 3/c and 3/b are respectively mentioned in Schedules A and A-1 of the plaint. Narahari transferred .280 decimals of land from the same plot by a registered Kabala (Ext. 3/a) dated 18-10-1938 for a consideration of Rs. 100 in favour of Mithan Bibi and Ysuf. Ysuf in his turn transferred his interest of .140 decimals for Rs. 200 by a registered sale deed (Ext. 3) dated 3-1-1950 in favour of Jama Dei who was plaintiff in Title Suit No. 217 of 1953 out of which Second Appeal No. 277 of 1963 arises.

2. Touzi No. 5639 was purchased in revenue sale by Kumar Sahu on 12-9-1945 under Ext. E. He transferred the same by a registered sale deed (Ext. D) dated 14-2-1949 to Biswanath Naik and two others. The entire body of landlords consisting of Biswanath Naik and two others filed Rent Suit No. 4457 of 49-50 on 12-4-1949 against Narhari alone for recovery of Bhag due tor the years 1955 and 1956 V. S. corresponding to 1948 and 1949 (see Ext. C). They obtained an ex parte decree (Ext. 2) on 15-5-1950 for recovery of Rs. 366-14-9. Execution Case No. 671/52-53 was filed for realisation by sale of 2.651 acres of land of which the disputed lands are a part (see order-sheet dated 7 7-1952 Exts. 1 and 1/a)

3. On 16-3-1953 Jaharali, Gaharali and Jema Dei filed an application under Order XXI, Rule 52, Civil Procedure Code claiming the disputed lands. On 28-3-1953 the Rent Court directed the objectors to be impleaded as judgment-debtors in the execution case and asked them to pay up the decretal dues by 5-4-1953. On 28-8-1963, Jaharali and Gaharali filed T. S. 216 of 1953 and Jema Dei T. S. 217 of 1953. On 29-8-1953. 2.651 acres of land including the disputed lands were put to sale and were purchased by defendants 1 to 3. The case of the plaintiff's in both the suits is that as they were not parties to the decree (Ext 2), it was a money decree not affecting their right, title and interest in the disputed lands and that the execution sale is not binding on them.

4. Facts are not disputed by the contesting defendants. They, however, asserted that the ex parte decree was a rent decree and not a money decree and that as the plaintiffs were parties to the execution case, the sale of their right, title and interest in the disputed lands is binding on them and the suits challenging the decree and the execution sale are not maintain able.

5. Both the Courts below concurrently recorded the following findings :

(i) Jaharali and Gaharali acquired valid title under Exts. 3/c and 3/b and Jema Dei under Ext. 3 Plaintiffs in both the suits had acquired occupancy rights under the sale deeds and also on the basis of their actual continuous and uninterrupted possession for over 12 years.

(ii) The decree obtained by defendants 1 to 3 under Ext 2 was a money decree and not a rent decree and as such did not bind the interests of the plaintiffs.

(iii) Plaintiffs were not parties in Execution Case No. 671 of 52-53 as judgment-debtors in the eye of law, and as such, the court sale of the disputed lands is not binding on them.

(iv) The commutation of rent from kind to cash was not legal and was not binding on defendants 1 to 3.

(v) The court sale was hit by the doctrine of lis pendens.

6. Both the suits were decreed. Title Appeals Nos. 107 and 168 of 1957 against the decrees in T. S. Nos. 216 and 217 of 1953 respectively were dismissed. Against the appellate decrees the second appeals have been filed.

7. Eindings (i), (ii) and (iv) are accepted by the learned advocates for both parties as correct. It is conceded by Mr. Sinha that he cannot support the judgments of the Courts below on finding No. (v) The sale is not hit by lis pendens.

8. The accepted position thus is that the purchases by the plaintiffs were valid and they were occupancy tenants in respect of the holding jointly with Narahari.

9. The concession that Ext. 2 is a money decree is well founded in law. A Bench of this Court held in Sri Gopinath Deb v. Govind Chandra Sahu, 18 Cut LT 26: (AIR 1953 Orissa 95) that the pre-amendment transfers were valid against the landlord despite non-service of notice on him. The distinction between 'rent decree' and 'money decree' is well known. In order that a decree for recovery of arrears of rent would have the effect of a rent decree, the entire body of landlords and tenants must be parties to the decree and that the suit must be for the rent due to the entire body of landlords in respect of the entire tenure or holding. Admittedly plaintiffs were the occupancy tenants with Narahari when the rent suit was filed and were not parties to the suit. Clearly the decree would have the effect of money decree and not of rent decree.

10. Both the courts were of opinion that Section 31B(2) of the Orissa Tenancy Act (hereinafter referred to as the Act) had no application to a money decree. Initially Mr. Sinha attempted to support the view of the Courts below on this point; but ultimately he conceded that it has application both to money decree and rent decree. Section 31B of the Act may be quoted--

31B(1) Notwithstanding anything contained in this Act, any transferee, who obtained a transfer of an occupancy holding or a portion of a share thereof before the commencement of the Orissa Tenancy (Amendment) Act, 1938 shall be liable to pay the fees lawfully payable by him at the time of the transfer within four years from the coming into force of that Act or the date of the landlord's knowledge of the transfer whichever is later but he shall not be liable to ejectment on the ground that the landlord had not given his consent to the transfer.

2. The holding or a portion or a share thereof shall not be liable to be sold in satisfaction of the decree for arrears of rent without making the said transferee a party to the proceedings in execution of the decree provided that the transferee has given notice of transfer by registered post to the landlord.

Explanation: Notwithstanding anything contained in this Act or in the Code of Civil Procedure, in the case of a transfer of a holding or a portion or a share thereof, whether before or after the decree the transferee may be brought on record in the proceedings in execution either in substitution or in addition to the judgment-debtor and such transferee shall when so added or substituted, be treated as a judgment-debtor for all purposes of the said proceedings in execution of the decree. Sub-section (2) and the (Explanation thus conceive of cases of transferees being made parties to the execution proceeding subsequent to the passing of the decree. If the transferee-occupancy-ryot was not a party to the decree, obviously the decree would have the effect of a money decree. Even then the Statute permits that sale in execution of a decree shall be valid, provided the transferee is made a party at the stage of execution. The language is clear that Sub-section (2) has application both to rent decrees and money decrees. The view of the Courts below confining the applicability to rent decrees only and excluding money decree from its operation is clearly erroneous in law.

11. Mr. Sinha initially attempted to advance an argument that as the decree-holder did not implead the plaintiffs as judgment-debtors in the execution case. Section 31B(2) of the Act was not complied with and that the order of the Court directing plaintiffs to be impleaded as judgment-debtors in an application filed by them under Order 21 Rule 58, C. P C was without jurisdiction, Ultimately, however, he did not press this argument and conceded that the view of the Courts below on this point was unsupportable. The Explanation to the section makes it clear that the transferees may be brought on record in the proceedings in execution The Statute does not insist that the decree-holder is to bring the transferee on record. The jurisdiction of the Court to implead a transferee as judgment-debtor is not taken away by the language of the section. The concession of Mr. Sinha is therefore well founded.

12. On the aforesaid analysis, the judgments of the Courts below cannot be supported on their own reasonings Mr. Sinha accordingly advanced an altogether new contention which was never raised in any of the Courts below that it is open to the plaintiffs to assail the validity of Ext. 2 in Civil Court as there is no provision in the Act whereunder the validity of the decree can be otherwise questioned. He placed reliance Under Section 9. Civil Procedure Code, and the well known authority in Secy. of State v. Mask & Co. AIR 1940 PC 105 which lays down that the Civil Court shall have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

13. Before examining the merits of the aforesaid contention, it would be profitable to state the ground on which the validity of the decree is assailed. The rent suit was for recovery of Bhag produce for the year 1948-1949. Under Article 2(b)(ii) in Schedule III of the Act, the limitation prescribed for recovery of arrear of rent, where rent is paid in kind, is one year from the last day of the agricultural year in which the arrear fell due. Plaintiffs were made parties in the execution proceedings on 28-3-1953 long after the expiry of the period of limitation. Mr. Sinha's contention is that so far as plaintiffs are concerned, 28-2-1953 should be taken as the date of suit for recovery of arrears of rent against them, and if they had been made parties to the suit, it was open to them to take a plea in defence that the suit was barred by limitation. He continued that questioning the validity of the decree on the ground of limitation is not available to a judgment-debtor in the execution proceedings, and that there is no provision in the Act whereunder this question can be raised and that the jurisdiction of the Civil Court is not ousted expressly or impliedly for determination that the decree against the plaintiffs is barred by limitation and void and that the sale in execution of such a decree is void and without jurisdiction and is not binding on the plaintiffs.

14. This contention is wholly misconceived. The Explanation appended to the Section is a complete answer. The legal position under the general law is well settled that ordinarily a person, who is not a party to the decree cannot be affected by it. Under the Code of Civil Procedure, a decree is not executable against a third person, by making him a party only, at the execution stage. In the case of a money decree, only the right, title and interest of a judgment-debtor would pass under execution sale and the entire holding does not pass. The legislature was conscious of this well accepted legal position. It is for the aforesaid reasons, the statute provides in the Explanation that notwithstanding anything contained in the Tenancy Act or in the Code of Civil Procedure, in the case of a transfer of a holding or a portion or a share thereof, the sale would be valid against a transferee who was not a party to the decree, if he is made a party to the execution proceedings, either in substitution or in addition to the judgment-debtor The language is very wide that such transferee would be treated as a judgment-debtor for all purposes of the said proceedings in execution of the decree.

15. Doubtless the validity of the decree can be questioned on general grounds, such as, the decree is either without jurisdiction or tainted with fraud, but it cannot be challenged on any of the grounds which lie within the jurisdiction of the Rent Court to be determined The question of decree being barred by limitation is clearly provided under Article 2 in Schedule III of the Act and its determination lies within the jurisdiction of the Rent Court If Mr. Sinha's contention is accepted, the explanation would be superfluous, because in every case the transferee judgment debtor can get out of the sale by taking to pleas which can be legitimated advanced against the validity of decree in a suit. The provision has been enacted for the benefit of the transferee-tenant. It enables him to deposit rent in execution stage and thus save his own property. The Explanation by necessary implication excludes the jurisdiction of the Civil Court from questioning the validity of the decree on the grounds which lie within the jurisdiction of the Rent Court.

16. Mr. Sinha was unable to cite a single decision where the validity of a decree in a prior suit can be questioned in an independent suit in the Civil Court on the ground that it was barred by limitation.

17. The judgments of the Courts below are contrary to law and must he set aside. In the result the appeals are allowed and the plaintiffs' suits are dismissed.

18. In the circumstances, parties to beartheir own costs throughout.


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