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Gopi Krishna Saha and Representatives, Kali Krishna Saha and ors. Vs. Nur Mohammedulla Sarkar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1945Cal32
AppellantGopi Krishna Saha and Representatives, Kali Krishna Saha and ors.
RespondentNur Mohammedulla Sarkar and ors.
Excerpt:
- .....that, in view of the tacking of the amount due on the award, the decrees could not be executed as rent decrees under chap. 14, ben. ten. act. this objection was overruled by the munsif but sustained by the subordinate judges.2. in support of the appeals it was contended by mr. das in appeal no. 169 and mr. lahiry in appeal no. 218 that, as long as the suits are properly framed under section 148a, it is quite immaterial that an amount payable under an award is tacked to the sum actually claimed in the suit. in order to test this proposition, it is necessary to examine it both from the point of view of section 148a and from the point of view of limitation. i will consider the former first. for this purpose i will assume that there is no difficulty with regard to. limitation and that both.....
Judgment:

Henderson, J.

1. These appeals are by the decree-holders. As the main point argued is common to them both, they were heard together. In S. M. A. No. 169 the facts are these: The appellant obtained a decree for rent for the years 1337-1340 B.S. Nothing was realized by execution proceedings. Similarly, no rent was paid for the years 1341 to 1343. The tenant then went to a Debt Settlement Board both for the arrears of rent and for the decretal amount and an award was made. The present suit was to recover the rent due for the years 1344-1346. The appellant included in the suit the amount payable under the award. In S. M. A. No. 218, the decree-holder instituted the suit for recovery of the rent due for the years 1344-1346. The rent due for an early period was covered by an award made by a Debt Settlement Board. Similarly, the appellant included this sum in the present suit. In both eases the judgment-debtors raised the objection that, in view of the tacking of the amount due on the award, the decrees could not be executed as rent decrees under chap. 14, Ben. Ten. Act. This objection was overruled by the Munsif but sustained by the Subordinate Judges.

2. In support of the appeals it was contended by Mr. Das in Appeal No. 169 and Mr. Lahiry in Appeal No. 218 that, as long as the suits are properly framed under Section 148A, it is quite immaterial that an amount payable under an award is tacked to the sum actually claimed in the suit. In order to test this proposition, it is necessary to examine it both from the point of view of Section 148A and from the point of view of limitation. I will consider the former first. For this purpose I will assume that there is no difficulty with regard to. limitation and that both the rent claimed in the suit and the rent covered by the award are within the period of limitation allowed. In this connexion the important point is the position of a co-sharer who is not a party to the award. Under Sub-section (3) he may apply to be made a co-plaintiff and sue to recover the arrears of rent which he claims as due up to the date of the institution of the suit. If he fails to do so, he incurs the penalty laid down in Sub-section (9). There might be a dispute between him and the original plaintiff as to their respective shares. The plaintiff's case might be overruled and he might be given a decree for four annas instead of eight annas; but the tenant defendant would be debarred from challenging the award which allowed the plaintiff an eight annas share. As a result, he would have to pay eight annas to the plaintiff and twelve annas to the co-plaintiff. It would be opposed to the fundamental principles of this part of the Tenancy Act to say that such a decree could have the effect of a rent decree. The learned Subordinate Judge went to the other extreme. He held that in no circumstances could a decree, which includes an amount payable under an award, have the effect of a rent decree. The practical result of an award is that the parties to it cannot go behind it. But it is not essential that there should be a dispute before a decree for rent can have the effect of a rent decree. Prom this point of view, there is no real difference between a decree passed on consent and a decree for a sum which the parties cannot dispute. I have, therefore, reached the conclusion that it is necessary to examine the award and to see whether, if it were a decree passed in a rent suit, it could be executed as a rent decree. If it could, then it may be so executed in the absence of any other obstacle in the way of the decree-holder. In the present case there is no such difficulty. All the landlords were before the board as parties to the award and are bound by it; further there is no difficulty in connexion with their shares.

3. There however remains to be considered the effect of limitation. Here different considerations arise. If the decree is to be executed under Chap. 14, any person whose interest amounts to an encumbrance has the right to make a deposit under Section 174(1) to protect that interest. In order to do so he must deposit for payment to the decree-holder the amount recoverable under the decree up to the date when the deposit is made with costs. An award may include--indeed in the present cases the awards do include -- claims for rent which were barred when the suits were instituted. As a result a person entitled to apply under Section 174 would be compelled to deposit a larger sum than that for which he could be made liable in a rent suit properly framed. The law of limitation is contained in Schedule 3 and is just as much part of the rent law as Section 148A. By that law the burden placed on a person entitled to make a deposit is limited and in my judgment it ought not to be extended in the absence of a specific provision to that effect. Accordingly if an award includes rent which could not have been recovered in the suit on account of the bar of limitation, the decree passed in the suit must be executed as a money decree. As a result, I am of opinion that although the conclusion of the learned Subordinate Judge is too broadly stated, his actual orders allowing the objections in these particular cases, are right. In this view, it is not necessary to deal with the other points raised. Mr. Lahiry however pointed out that the learned Subordinate Judge overlooked the amendment to Order 21, Rule 66, Civil P. C. It further appears that in dealing with Appeal No. 169 instead of allowing the objection under Section 47 he has dismissed the whole execution case. It was suggested that this was due to an oversight. Appeal No. 218 of 1941 is dismissed. In appeal NO. 169 of 1941 the order of the lower appellate Court is modified; the order' dismissing the execution case is set aside; the order allowing the objection is upheld and the Munsif is directed to dispose of the execution case in accordance with law. I make no order as to costs. Leave to appeal under Clause 15, Letters Patent, is granted. (The appellants appealed under Clause 15, Letters Patent.)

Judgment of Letters Patent Bench.

4. We are of opinion that the orders of Henderson J. are right. The appeals are accordingly dismissed. There will be no order as to costs.


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