1. The question raised in this appeal, which is by the judgment-debtor, depends upon the construction of the proviso to Section 168A, Sub-section (1) (a), Bengal Tenancy Act. The material facts which are admitted, are as follows: In 1932 the respondent obtained a decree against the appellant for arrears of rent due in respect of a patni taluk. The decretal amount was ES. 4395 odd plus costs amounting to Rs. 495. Before 1940 that decree was executed four times and a total sum pf Rs. 880 was realised. In 1940 the decree was put into execution again. In the course of this execution there was an adjustment between the parties on 5th June 1940. By the adjustment the decree-holder agreed to receive Rs. 3639-8 in full satisfaction of the decree. The sum of Rs. 839-8 was paid by the appellant on that date and the balance, Rs. 2800, was made payable in instalments. One of the terms of the adjustment was that if there was any default in payment of an instalment or if the patni taluk was sold in a rent sale or a sale tinder Regn. 8 of 1819, the whole of. the then outstanding balance would become payable and could be realised by execution of the decree passed in the rent suit. The judgment-debtor paid the first instalment amounting to Rs. 400 but failed to pay further instalments. For realising subsequent arrears of rent, which had not been included in the rent suit, the respondents took proceedings under Regn. 8 of 1819 and the patni taluk was sold in these proceedings by the Collector. At the sale held by the Collector, the respondents purchased the same on 15th May 1941. That sale was duly confirmed. Thereafter on 14th July 1942 the respondents filed an application for executing their decree as adjusted on 5th June 1940 (rent execution No. 5 of 1942). They prayed for recovery of the sum of Rs. 2400 by attachment and sale of the judgment-debtor's properties, other than the patni taluk in arrear, which, as we have already stated, did not at that time belong to the judgment-debtors. The judgment-debtors filed an objection under Section 47, Civil P. C. They contended that in view of Section 168A, Sub-section (1) (a), Bengal Tenancy Act, which had come into operation on 9th January 1941 the execution was not maintainable. The decree-holders contended that they were entitled to proceed against those properties of the judgment-debtor by reason of the proviso to that sub-section of Section 168A. Both the Courts below have overruled the objection and have allowed the execution to proceed. The learned Subordinate Judge based his order on the following grounds:
2. (1) Relying on the decision in Satish Chandra Hui v. Sudhir Krishna Ghosh : AIR1942Cal429 , he held that by the putni sale and purchase by the landlords, there had been complete merger of the tenants' and landlords' interests and consequently that 'the term of the tenancy' had expired within the meaning of the proviso to Sub-section (1) (a) of Section 168A, Bengal Tenancy Act. (2) Distinguishing the facts, but following the principles laid down in Atul Chandra v. Gopendra Narayah : AIR1942Cal478 , he held that the application for execution by attachment and sale of property other than the putni taluk made on 14th July 1942 was made after 'the term of the tenancy' had expired : (a) the putni taluk had been Sold in execution of a decree other than the decree of which execution was being sought, and (b) the decree of which execution' was sought was not the original decree but a new decree after adjustment on 5th June 1940 and that the present application for execution was therefore the first or initial application for execution so far as the adjusted decree was concerned. On appeal, the learned District Judge of Burdwan agreed with the learned Subordinate Judge in his conclusions on grounds (1) and (2) (b), but differed from him in the view he took as to ground (2) (a), holding that the fact that the landlords had purchased, the putni taluk in execution, not of the decree of which execution was being sought, but under Regn. 8 of' 1819 for subsequent arrears, was immaterial so far as concerned the applicability of the principles laid down in Atul Chandra v. Gopendra Narayah : AIR1942Cal478 . On the first two grounds, however, he disallowed the objections to the execution and the judgment-debtors have now appealed to this Court.
3. The decisions of the lower Courts have been attacked on three main points : (1) That as the putni taluk was created prior to 1882, the conclusion that 'the term of the tenancy' had expired by merger was erroneous in the absence of clear proof by the landlords of that fact; (2) that the lower Courts erred in holding that the application for execution was an application for; execution of a new decree and not of the original decree, and, in consequence (3) that following the decision in Atul Chandra v. Gopendra Narayah : AIR1942Cal478 , the application for execution within the meaning of Sub-section (1) (a) of Section 168A, Ben. Ten. Act, was made before 'the term of the tenancy 'had expired, even if it should be held that 'the term of the tenancy 'had expired by merger, and the landlords were not therefore entitled to the benefit of the proviso to that sub-section. We shall deal with these points seriatim.
4. We respectfully agree with the decision of Nasim Ali and Pal JJ. in Satish Chandra Hui v. Sudhir Krishna Ghosh : AIR1942Cal429 in regard to the meaning of the words 'term of the tenancy expires' in the proviso to Sub-s. (1) (a) of Section 168A, Ben. Ten. Act, and with the subsequent views of Mukherjea and Blank JJ. in Atul Chandra v. Gopendra Narayah : AIR1942Cal478 that 'merger' is one of the methods by Which the tenancy can expire within the meaning of that proviso. The correctness of those decisions has not been seriously challenged by the learned advocate for the appellants. His contention was, mainly, that the landlords had not discharged their onus of proving that merger did an fact take place. He relied on the decision, Dulhin Lachhanbatl Kumari v. Bodhnath Tewari ('22) 9 A.I.R. 1922 P.C. 94, and a series of decisions of this Court, the latest that Raja Bejoy Singh Dudhoria v. Tarini Charan Saha ('35) 39 C.W.N. 694 in which it was held that if a tenure, created before the Transfer of Property Act came into force, is acquired by the holder of the superior interest after the Act, then Clause (d) of Section 111 being excluded by Section 2(c) would not apply and there will be no merger of the tenure in the Superior interest by operation of law if the holder keeps the two separate. The same view was taken by Nasim Ali and Remfry JJ. in Kumar Chandra Singh v. Sarat Chandra : AIR1938Cal128 . The position following these decisions comes to this that where, as in the present case, the putni taluk was created before the. Transfer of Property Act came into force, there can be no presumption of merger by operation of law where the subordinate interest is acquired by the holder of the superior interest after the Act, but the intention of the parties has to be seen and determined in each case. In the present case however applying the principle laid down by their Lordships of the Privy Council in Gokuldoss Gopaldoss v. Eambux Seochand ('84) 10 Cal. 1035 which has been approved in Mahomed Ibrahim Hossein Khan v. Ambika Prosad Singh ('12) 39 Cal. 527, that
the ordinary rule is that a man having the right to act in either of two ways shall be assumed to have acted according to his interest
we think that no error was committed by the learned lower Courts in reaching their conclusion that merger did in fact take place. At the time when the landlords purchased the putni taluk, the new Section 168A, Ben. Ten. Act, had been enacted, and as it was then clearly to their advantage that the two interests should be merged and not kept separate, the conclusion was in our judgment justified that, in the absence of any indication to the contrary, merger had taken place. Apart from other reasons, the very application of the landlords for execution by attachment and sale of property other than the putni taluk was an indication of merger. We decide this point therefore against the appellants.
5. The second contention advanced on behalf of the appellant is, we think, correct. By the adjustment between the parties in the execution case on 5th June 1940, no new decree was or could be brought into existence. The decree remained the same, but the decree-holders agreed to enter satisfaction on receipt of a lesser amount than that to which they were entitled under the original decree. This view is supported by the decision in Sarada Prosad Ghosh v. Bokeya Khatun Bibi ('35) 39 C. W. N. 1036. In that case a rent decree passed on 26th July 1930 was put into execution and in the course of execution an agreement was entered into between the parties on 18th August 1980 that the amount should be paid by certain instalments and there was also a provision for interest. There were various proceedings in execution and eventually a fresh execution case was started on 9th August 1933. The objection of the judgment-debtors was upheld that execution was barfed, being more than three years from the date of the original decree, and the contention of the decree-holder rejected that the original decree had been superseded by the solenama of 13th August 1930. A decision of a similar nature relating to Section 48, Civil P. C, was given by this Court in Rani Syama Sundari Devi v. Sree Raj Gopal Achariya Gosswami ('23) 27 C. W. N. XLIII. We hold accordingly that the application for execution in the present case is an application for execution of the original decree for arrears of rent, and answer this point in favour of the appellants.
6. In view of our previous decisions that 'the term of the tenancy' expired by merger on 15th May 1941, when the patni taluk was purchased by the landlords, but that the application for execution filed on 14th July 1942, was an application for execution of the original decree for arrears of rent and not therefore the first application for execution of that decree, it becomes necessary for us to consider with care the meaning of the words 'an application is made for execution of such' a decree' in the proviso to Sub-section (1) (a) to Section 168A, Ben. Ten. Act. The learned advocate for the appellants relies on the construction given to those words in Atul Chandra v. Gopendra Narayah : AIR1942Cal478 . Our attention has however been invited to a different construction given by Roxburgh J. in Swarna Manjuri Dassi v. Fakir Chandra : AIR1944Cal203 in which he has held that the 'application' referred to in the proviso refers to the particular application for execution against other properties of the judgment-debtor which would have been barred under Sub-section (1) (a) but for the operation of the proviso. In reaching this conclusion he held further that the word 'expires' in the proviso to Sub-section (1) (a) refers to expiry after and not before the commencement of the Bengal Tenancy Amendment Act, 1940, i. e., after 9th January 1941. For our present purpose it is not necessary for us to consider the latter question since in this case the expiry of the tenancy took place after that date.
7. Neither of the decisions referred to above is directly applicable to the facts of, the present case, since in both those cases the tenure had been sold in execution of the decree for arrears of rent prior to the commencement of the Bengal Tenancy Amendment Act, 1940, and the application for attachment and sale of other property was made in execution of the same decree in satisfaction of which the tenure had already been sold. The result in those cases would be the same whichever view be taken of the meaning of the word 'expires' and of the words 'an application... for execution of such a decree.' In the present case, the patni taluk was sold after the commencement of the Bengal Tenancy Amendment Act and in execution of a decree other than that for which the present application has been made. No application for execution of the decree under consideration by attachment and sale of the patni has been or can now be made and in such circumstances we do not think it would be a reasonable construction to hold that the decree-holder would be debarred from the benefit provided by the proviso to Sub-section (1) (a) of Section 168A, Ben. Ten. Act, because prior to the commencement of the Amendment Act he had made applications for execution of the decree for arrears of rent in accordance with the law then in force by attachment and sale of property other than the tenure or holding, whether those applications were fructuous or infructuous. Having regard to the provisions of Sub-section (1) (b) of Section 168A there can be no question in cases in which the 'term of the tenancy' expires after the commencement of the Bengal Tenancy Amendment Act, 1940, of making an application for execution of a decree after the tenure or holding has been sold in execution of that decree, since the decree will be fully satisfied by the sale, but we think that in cases where the tenure or holding has been sold in execution of another decree it would not be stretching the language of the proviso too far to hold in agreement with the construction of Roxburgh J. in Swarna Manjuri Dassi v. Fakir Chandra : AIR1944Cal203 , that the 'application' referred to in Sub-section (1) (a) of Section 168A, Ben. Ten. Act, refers to the particular application for execution against other property of the judgment-debtor which would have been barred under Sub-section (1) (a) but for the operation of the proviso. In this view of the matter, we hold that execution is not barred in the present case and that the objections were properly rejected by the lower Courts. The appeal is therefore dismissed. Parties will bear their respective costs throughout.
R.C. Mitter, J.
8. I agree.