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Naresh Chandra Bose Vs. Bhupendra Narayan Sinha - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata
Decided On
Case NumberA.F.O.O. No. 138 of 1945 and Nos. 1 and 2 of 1946
Judge
Reported inAIR1950Cal15,54CWN243
ActsBengal Tenancy Act, 1885 - Sections 3(13), 168, 168A and 168A(1)
AppellantNaresh Chandra Bose
RespondentBhupendra Narayan Sinha
Appellant AdvocateBenoy Behari Sen, Adv.
Respondent AdvocateSitaram Banerjee and ;Arun Kumar Dutta, Advs.
Cases ReferredBam Lal Das v. Bandiram Mukhopadhya
Excerpt:
- .....an appeal was taken up to the high court which upheld the decree on 28th may 1940. in the meantime rent execution case no. 42 of 1939 had been filed and the jote in arrears was sold and purchased by the decree-holder on 21st november 1941.2. for the rent which fell due from 1340 to 1343 b. s. a rent suit had been filed in 1937 being rent suit no. 9 of 1937 and was decreed on 23rd december 1940 for the rent in arrears as also costs amounting to rs. 453-3-0. rent execution case no. 41 of 1943 was filed on 3rd july 1943. the prayers were for attachment and sale of other properties of the judgment debtor or in the alternative for arrest of the judgment-debtor. the judgment-debtor filed miscellaneous case no. 64 of 1943 alleging that as naresh chandra basu, the appellant was only a part owner.....
Judgment:

K.C. Chunder, J.

1. These are three appeals arising out of three execution proceedings of the Court of the Subordinate Judge of Murshidabad. In two of them, there was an appeal to the District Judge who modified the order in execution of the Subordinate Judge and there are two second appeals against the District Judge's decision. The third is the First Miscellaneous Appeal against the order of the Subordinate Judge. The Raja Bahadur of Nashipur is the owner of a Touzi No. 1152/1. There is a patni under it of which the appellant Naresh Chandra Basu has a ten annas interest while the remaining six annas belong to the Maitras. Under the patni, the Raja Bahadur has another jote. The jote fell into arrears of rent. Rent suit No. 7 of 1933 was filed for arrears of rents from 1336 to 1339 B. S. This was decreed and an appeal was taken up to the High Court which upheld the decree on 28th May 1940. In the meantime Rent Execution case No. 42 of 1939 had been filed and the jote in arrears was sold and purchased by the decree-holder on 21st November 1941.

2. For the rent which fell due from 1340 to 1343 B. S. a rent suit had been filed in 1937 being Rent Suit No. 9 of 1937 and was decreed on 23rd December 1940 for the rent in arrears as also costs amounting to Rs. 453-3-0. Rent Execution Case No. 41 of 1943 was filed on 3rd July 1943. The prayers were for attachment and sale of other properties of the judgment debtor or in the alternative for arrest of the judgment-debtor. The judgment-debtor filed Miscellaneous Case No. 64 of 1943 alleging that as Naresh Chandra Basu, the appellant was only a part owner of the patni there has been no merger and therefore the jote being still in existence there could be no attachment and sale of other properties. This miscellaneous case was decided in favour of the Raja Bahadur. The decree-holder then prayed for the alternative mode of execution of arrest of judgment-debtor. The defence taken by the judgment debtor was that under Section 168A, Ben. Ten. Act, the rents subsequent to the period in suit in Kent Suit No. 7 of 1933, that is, rents for the year 1340 B. S. and subsequent years were no longer due, the decree-holder himself being the purchaser was to pay the same and could not realise it from the judgment debtor. This defence was taken in Miscellaneous case No. 91, of 1944. The Subordinate Judge decided that the decree could not be executed not only for the rent but also the costs etc., as in his view costs etc., were also included within rent. He therefore dismissed the entire execution petition. This has given rise to the First Miscellaneous Appeal No. 138 of 1945. In the meantime for the rent accrued due for 1344 to 1847 B. S., Rent Suit No. 8 of 1941 had been brought. It was decreed not only for the arrears of rent but also for costs amounting to Rs. 476-6-3. Rent Execution Case No. 31 of 1944 had been filed praying for attachment of a debt due to the judgment-debtor and arrest. The judgment-debtor had objected in Miscellaneous Case No. 131 of 1944 and the Sub-ordinate Judge had dismissed the execution application by the same judgment as in the previous miscellaneous case referred to on 17th March 1945. An appeal was taken against this to the Court of the District Judge being Miscel. laneous Appeal No. 35 of 1945 of the Court of the District Judge and the District Judge modified the order of the Subordinate Judge. This is the subject-matter of Second Miscellaneous Appeal No. 1 of 1946. There had been another decree for the amount of Rs. 175 8 0 for rent and RS. 20 4 o for costs in Rent Suit No. 8 of 1941 previously mentioned which had given rise to Rent Execution case No. 37 of 1944 leading to Miscellaneous case No. 132 of 1944 which was also disposed of by the same judgment by the Subordinate Judge and the prayer for execution was also dismissed on 17th March 1945. An appeal filed to the Court of the District Judge being Miscellaneous Appeal No. 36 of 1945 modified the order of the Subordinate Judge and has given rise to second Miscel. laneous Appeal No. 2 of 1946. The appellant in all these three appeals before us is the decree-holder Naresh Chandra Basu and the contesting respondent is the judgment-debtor the Raja Bahadur of Nashipur now represented by the Court of Wards.

3. In all the three appeals the main question for decision is whether 'purchaser' mentioned in Section 168A (1) (b), Ben. Ten. Act, means also the decree-holder purchaser or, in other words, has the decree holder purchaser to deposit the amount mentioned in that Sub-clause? If this is so, then it is clear that the decision of the District Judge in both the miscellaneous appeals was right and in all the three appeals before us the appellant will not be entitled to succeed as far as his claim for execution of the decrees for the arrears of rent are concerned and the two second miscellaneous appeals must be dismissed in toto there being no cross appeal the decrees of the District Judge will be upheld.

4. The second point is if the purchaser includes also the decree-holder purchaser, then as the deposit was not made and the sale had been confirmed so long ago how are the equities to be adjusted? The third point in the first miscellaneous appeal is even if the decree-holder is not entitled to execute the decree obtained by him for arrears of rent, can he execute the same for the costs awarded to him? In this connection the question has also been raised whether arrears of rent will include interest or damages awarded by the Court, or this will be excluded. The view of the learned Subordinate Judge was that interest or damages as well as costs could not be realised by execution. It is not disputed by the respondent that the decree may be executed for the costs. The third question relates to the question of interest. As regards the modes of execution for the balance in the first miscellaneous appeal and also in the two second miscellaneous appeals under the order of the District Judge the decree can be executed in the way pointed out in the Special Bench decision in the case of Sudhir Krishna Ghose and Anr. v. Satish Chandra Hui and Ors. : AIR1944Cal418 . There is no dispute on this point.

5. We shall now take up the question whether purchaser in Section 168 (1) (b), Bengal Tenancy Act includes also the decree-holder purchaser. In the case of Phani Bhusan Muhherjee v. Rai Bahadur Purna Chandra Bagchi and Ors. : AIR1944Cal199 , a Divisional Bench of this Court decided that purchaser included a decree-holder purchaser. That decision was followed by another Divisional Bench which merely cited it and accepted it as correct in the case of Sm. Swarnamanjuri Dassi v. Fakir Chandra Karar and Ors., reported in 48 C.W.N. 220 : (A. I. R. (31) 1941 Cal. 203 ). In the case of Rai Jogendra Chandra Ghose Bahadur v. Bhawani Charan Law and Ors. 0043/1945 : AIR1945Cal425 , R. C. Mitter J. cast a doubt upon the soundness of the decision of B. K. Mukherjee J. in the case of Phani Bhusan Mukherjee v. Rai Bahadur Purna, Chandra Bagchi and Ors. : AIR1944Cal199 . He pointed out some considerations for which he thought that the decision could be challenged and considered that the question should be examined again in the light of his observations. It did not become necessary for him actually to decide the point finally as the case could be decided on another ground namely whether Section 168 A had retrospective operation and interfered with a vested right of a decree-holder purchaser who had sold the property and purchased it himself before the amendment came into force and had the right at the time to have the sale confirmed without making the deposit. It was decided by R. C. Mitter J. that as he had acquired a vested right which was not taken away by the amendment he was not to make a deposit and on this view the case was decided and no final decision actually given as to whether decree-holder was included in the word 'purchaser.' In the case of Amano Barmanya v. Uma Charan Das : AIR1947Cal330 , this very question again came up for decision before a Divisional Bench and B. K. Mukherjea J. again re-affirmed his previous decision that the decree-holder was included in the word 'purchaser'. It may be mentioned that in some single Judge decisions also the decision in the case of Phani Bhusan Mukherjee v. Rai Bahadur Purna, Chandra Bagchi and Ors., reported in : AIR1944Cal199 , had been accepted as correct. It can be considered that B. E. Mukherjea J. in his later decision in the case of Amano Barmanya v. Uma Charan Das and Ors. : AIR1947Cal330 , had reiterated his previous decision after fully considering the doubts that had been cast upon the soundness of his previous decision by R. C. Mitter J. though he had not dilated upon the same. Again, after this decision of the Divisional Bench, Chakravartti J. in a decision in the case of Abdul Mannan v. Madhabi Ranjan Chakravarty, reported in 52 C. W. N. 627 :(A. I. R. (36) 1949 Cal. 93), doubted the soundness of the decision of B. K. Mukherjea J., but here again the case was decided upon another view of the matter and no final decision was given by Chakravartti J. In this state of authorities it is beyond question, that the decision in the case of Phani Bhusan Mukherjee v. Rai Bahadur Purna Chandra Bagchi and Ors., reported in : AIR1944Cal199 and accepted several times though doubted in two decisions is still a decision binding on us as a Divisional Bench. Mr. Sen has urged before us that we should refer the matter to a Pull Bench for final decision.

6. We have fully considered all the reasons given in the two doubting judgments as also the reasons given by B. K. Mukherjea J. and by B. B. Pal J. in their judgments in the case of Phani Bhusan Mukherjee v. Rai Bahadur Purna Chandra Bagchi and Ors. : AIR1944Cal199 .

7. It is clear that Section 168A, Bengal Tenancy Act, is laying down a uniform mode instead of the diverse modes of execution according as the decree for arrears of rent had the effect of a rent decree or a money decree or was under the certificate procedure. In connection with this and in order to give the tenant a protection against the landlord decree-holder himself the right of the landlord to bring to sale by attachment any other property, moveable or immovable, of the tenant judgment-debtor so long as the tenure or holding in arrears was in existence was taken away. It is immaterial that there are lacuna in the Act by which even when the tenancy has not been terminated execution may be had in other ways namely by appointment of receiver etc., as pointed out in the Special Bench decision in the case of Sudhir Krishna Ghosh and Anr. v. Satish Chandra Hui and Ors. : AIR1944Cal418 . It is, therefore, clear that as between the judgment-debtor tenant and the decree-holder landlord the section itself has favoured the tenant judgment-debtor. Clause (1) (a) can leave no room for doubt about this. The section as a whole whether it may or may not have indirectly benefited the decree-holder landlord also, has begun with restricting the rights of the landlord decree-holder and not 'enlarging the same in Clause (1) (a). In view of the clear provision of Clause (1) (a) this cannot be doubted and this has been pointed out in an unreported single Judge decision of this Court of Henderson J. in Kulhame v. Kalyani Prasad, in Second Misc. Appeal No. 119 of 1941 decided on 12th March 1912.

8. Under Clause (1) (b), it is clear that the purchaser is to deposit the amount by which the bid offered may fall short of the decretal amount as also he has to deposit the costs of execution and he has further to deposit the arrears of rent which have accrued due between the institution of the suit and the confirmation of the sale. It is clear that a benefit to the judgment-debtor tenant is intended. No doubt in the case of a stranger auction purchaser the decree-holder landlord will also be benefited. But the question is, does this show any intention as between the decree-holder landlord and the judgment-debtor tenant to show preference to the decree-holder landlord over the judgment, debtor tenant? It is immaterial whether the decree-holder is also benefited in case of a stranger auction-purchaser as benefit goes to both the decree-holder and the judgment-debtor. Have we anything in this clause for which it may be considered that the preference shown for the judgment-debtor tenant by the Legislature by the restriction of the rights of the decree-holder landlord in Clause (1) (a) had suddenly been changed and preference given to the decree-holder landlord over the judgment-debtor tenant The words 'paid to the decree-holder' can lead to no inference that the person who is to make the payment must be some one else. The payment is not to be made directly or out of Court but the payment is to be made by deposit of the amount in Court and Section 169, Bengal Tenancy Act, regulates how the money deposited as purchase price is to be distributed. Even before the enactment of Section 168A the decree-holder was entitled to purchase the property. Under the Bengal Tenancy Act he even had not to take the permission of the Court as he had to do under the Civil Procedure Code as also the Bengal Public Demands Recovery Act. It is therefore clear that purchase by the decree-holder was within the purview of the Legislature as the decree-holder had been given a right to bid at the sale without the permission of the Court under the Bengal Tenancy Act and with such permission in the other two cases. It is further clear that under the Bengal Tenancy Act although the obliger and the obligee were the same when the decree holder became the auction purchaser, he had no absolute right to set off but he had to deposit the money in Court and then draw it out under Section 169, Bengal Tenancy Act. In some cases the Courts ex gratia appear to have allowed a set off. Therefore the procedure of the decree-holder paying to himself money by deposit in Court was in force even before the amendment in Section 168A, Bengal Tenancy Act. It is therefore idle to contend that the decree holder could not have been contemplated as paying, himself. The payment to be by deposit of money in Court in one capacity, i. e., as purchaser and subsequent drawing out of the same would be in another capacity as decree-holder landlord. Such procedure was already in vogue even in the case of a decree-holder purchaser under the Bengal Tenancy Act previous to Section 168A. If the amount of purchase price was sufficient, then the decree-holder was also entitled not only to his decretal amount but to the costs of execution and the arrears of rent which had fallen due since the institution of the suit up to the date of confirmation of the sale. He already had this advantage if the money was sufficient. Therefore no new advantage was being directly conferred upon him by the provision in Section 168A by providing for payment by the purchaser of the balance of the decretal amount, the costs of execution and the arrears of rent subsequent to the institution of the suit. All that the amendment did was to make it sure that the purchase price would not fall below an amount which would be sufficient to cover all these extra payments. So long as the amount was not sufficient the judgment-debtor tenant had to pay the same later on to the decree-holder landlord. In any case the decree-holder landlord, even when Section 168A had not been enacted, got these amounts though he had to have recourse to another execution for the costs of execution etc., and another suit for the arrears of rent. The change that has been made by Section 168 A has been that this extra amount has to be paid by the purchaser so that the judgment-debtor tenant would be absolved from further liability for the same. This amendment therefore benefits the tenant more than it does the decree-holder landlord. Therefore there is no reason to consider even from the point of view of the intention of the legislature that it is solely or mainly to benefit of the landlord decree-holder and therefore the word 'purchaser' should not include the decree-holder purchaser. Throughout the Bengal Tenancy Act as also the Code of Civil Procedure and the Bengal Public Demands Recovery Act no difference has been made between a stranger auction purchaser and a decree-holder auction purchaser and it will be very curious if in this solitary instance such a distinction was intended. The distinction if made would place the decree-holder purchaser in a doubly favourable position as compared to a stranger purchaser. In case of a decree-holder he will not only have not to pay the money due for the arrears of rent for the subsequent period but he will in addition be in a position to realise it later on from the tenant judgment-debtor himself. The result of it will be that the tenant judgment-debtors will be at the mercy of decree, holder landlord as other purchasers being at a disadvantage would be deterred from purchasing and this is likely to open the door to various kinds of abuses which we cannot for a moment, considerate have been contemplated by the legislature as at all desirable. In ordinary language 'purchaser' means one who purchases and will include decree-holder if he is such a person. The ordinary clear meaning of a word certainly may be restricted or enlarged if the context or anything in the law by implication even requires such modification of ordinary meaning. In the present section we have not been able to see anything for which the word 'purchaser' should not have its ordinary meaning. Neither have we been able to see anything in the whole of Section 168A to justify a conclusion that the meaning of the word 'purchaser' should be a restricted one when the word includes both decree-holder and stranger purchaser in all other parts of not only the Bengal Tenancy Act but of the Civil P. C. and Bengal Public Demands Recovery Act. Sales for arrears of rent covered by all the three Acts are being made uniform in this section. In none of these three Acts in any other section has the word 'purchaser' been restricted merely to a stranger purchaser.

9. After giving our fullest consideration to the doubts that were raised, which we have considered in our judgment, we are clearly of opinion that the decision in the case of Phani Bhusan Mukherjee v. Rai Bahadur Purna Chandra Bagchi and Ors. : AIR1944Cal199 is a correct decision and there is absolutely no need for reference to a Pull Bench. We agree with and accept the same and hold that a purchaser in Section 168A (1) (b), Bengal Tenancy Act, includes a decree-holder purchaser.

10. The two second miscellaneous appeals have raised only this question and as this is found against the appellant the two second miscellaneous appeals are dismissed.

11. Coming now to the special question in the first miscellaneous appeal as to what is meant by rent, that is, whether costs decreed in the suit are to be included or excluded we are of opinion that the learned Subordinate Judge overlooked the definition of 'rent' in Section 3 (13). That definition would clearly show that the costs decreed in the rent suit are not included in rent. This amount is not payable by the purchaser and for this amount there may be an execution taken out. In the decision in Amano Barmanya v. Uma Charan Das and Ors., 50 C. W. N. 803 : (A.I.R. (34) 1947 Cal. 830), a Divisional Bench has already decided that the auction purchaser is liable only for the actual amount of the rent and not for the entire decretal amount. It has been decided already by two Divisional Benches in the case of Sri. Iswar Joy Chan-di Thakurani and Ors. v. Manmatha Nath Das, 49 C. W. N. 756 : (A. I. R. (33) 1946 Cal. 88) and in the case of Bankim Chandra Chatterjee and Ors. v. Gour Mohan Mullick, 50 C. W. N. 261, that rent includes cess. Under Section 161 (c), Bengal Tenancy Act, the words 'arrears' and 'arrears of rent' shall be deemed to include interest decreed under Section 67 or damage awarded in lieu of interest under Sub-section (1) of Section 68. This is the special meaning given for the purposes of Chap. XIV and Section 168A as also Section 169 appear in Chap. XIV, Bengal Tenancy Act. The deposit made under Section 168A (1) (b) is distributed under Section 169 and it has already been decided in connection with Section 169 (1) (c) that

'any rent which may have fallen due in respect of the tenure or holding between the institution of a suit and the date of the confirmation of the sale 'includes interest on such rent'. '

There was first an obiter about this in the case of Moharajadhiraj Bejoy Chand Mohatab Bahadur v. S, C. Mukherjee, 11 C. W.N. 1106, which was dissented from in 12 C. W. N. cxliv (Notes portion) and finally it was so decided in the case of Prafulla Nath Tagore and Ors. v. Matabaddin Mandal and Ors., 22 C. W. N. 323 : (A. I. R. (5) 1918 Cal. 965). This view was again confirmed in the case of Bam Lal Das v. Bandiram Mukhopadhya, 26 C. W. N. 511: (53 I.C.993). It is, therefore, clear that the purchaser is to deposit the rent, cess and interest decreed in the suit but he is not to deposit the costs awarded by the Court and the same has to be paid by the judgment-debtor tenant and for it execution may be taken out.

12. We have now to consider the last remaining question as to how the equities in the present case are to be worked out. In the various decisions already referred to the procedure adopted had not always been uniform. It is not necessary for our present purpose to consider the position when a person other than the decree-holder becomes the auction purchaser.

13. In determining the equities between the parties we cannot overlook the time factor. If an order confirming the sale is passed by the Court and is allowed to remain unaffected for a long time, various persons may become interested in the said property on the basis of the order for confirmation being a valid and binding order. If such an order is to be set aside after the lapse of a long period various complications are bound to arise. Reference in, this connection may be made to Section 159 (2), 167 and 174 (1), Bengal Tenancy Act. In working out the equities we must not forget the complications which will ensue if the order for confirmation be set aside now.

14. The objection raised to the order for confirmation is dependent on certain laches on the part of the decree, holder himself. Illegality in question is that the decree-holder did not do what he was required to do under the provisions of the Act. No doubt it has been observed in some of the decisions that it is a duty of the Court as well to see that the obligations which are required to be discharged by the decree-holder are duly performed. This, however, does not take the case out of the general and equitable principle that equity will consider that as done what should have been done and that a person cannot be allowed to take advantage of his own wrong.

15. When the decree-holder himself is the auction purchaser the payment of the subsequent arrears which had accrued due is to be made to himself and the said decree-holder is entitled to an order confirming sale by either paying himself or on declaring that the amount due is wiped out. When a decree-holder auction purchaser applies for the confirmation of the sale without either depositing the amount of subsequent arrears or discharging the said dues formally he must be taken to have given up his right to claim such arrears at any subsequent stage. He must be deemed to have done what he was required to do before he could get an order confirming the sale. Under the circumstances when the attention of the executing Court is drawn subsequently to the fact that the sale had already been confirmed without the decree-holder auction purchaser fulfilling the conditions laid down under Section 168A, Bengal Tenancy Act, all that the executing Court need do is to record an order that the total amount of rent, cess and interest which had accrued due up to the date of confirmation is deemed to be satisfied by the decree holder auction purchaser having applied for such confirmation and the confirmation having been made. Unless the decree-holder auction purchaser files an application entering satisfaction of the dues which had so accrued the Court is, in our opinion, competent to declare the said dues as having been satisfied by implication. The learned Subordinate Judge was therefore right in holding that the subsequent arrears up to the confirmation of sale and for which decrees might have been obtained should be taken as having been fully satisfied.

16. Although our decision is that the amount of arrear of rent, cess and interest had been satisfied on the confirmation of the sale it is to be noticed that the decrees for the subsequent period had been obtained by the landlord before the sale of the tenure in execution of the decree in Rent Suit No. 7 of 1943. The cost which had been decreed in favour of the landlord in the subsequent rent suits were not wiped away by the order confirming the sale and so the same may be now realised by execution. We do not express any opinion on the question as to what the legal position will be when the auction purchaser is some one other than the decree-holder.

17. The order of the Subordinate Judge in the first miscellaneous appeal will, therefore, be modified and the execution case dismissed by him will be restored and the decree holder will be entitled to apply for execution of the decree only for the amount due for costs awarded in the suit, the rest of his claim being taken as satisfied by set off and the two second miscellaneous appeals will be dismissed.

18. The respondent will got his costs in all the three appeals from the appellant as he has substantially won in all appeals but there will be one set of hearing fee.

R.P. Mookerjea, J.

19. I agree.


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