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Kedar Nath Banerjee Vs. Ardha Chunder Roy - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1902)ILR29Cal54
AppellantKedar Nath Banerjee
RespondentArdha Chunder Roy
DispositionAppeal dismissed
Cases Referred and Parameswar Nomosudra v. Kali Mohun Nomosudra
Excerpt:
limitation - bengal tenancy act (viii of 1885) schedule iii. article 6--limitation act (xv of 1877) schedule ii. article 179--whether an application for execution of a decree for a sum not exceeding rs. 500, obtained by a co-sharer landlord for his share of the rent, is governed by the special rule of limitation as laid down in bengal tenancy act or by the general law of limitation as laid down in the limitation act. - .....provisions of the act, namely, those relating to the sale of tenures and holdings in execution of rent decrees, may not apply to such a decree. he argues that, if it were otherwise, if the special law of limitation did not apply to these cases, anomalous results would follow, such as this, that whereas a rent decree for a sum not exceeding five hundred rupees, if obtained by all the joint landlords suing together, must be completely executed within three years a co-sharer landlord obtaining such a decree can keep it alive for execution against the tenant for twelve years by making successive applications at intervals of three years. and in support of his contention he relies upon sections 143 and 144 of the bengal tenancy act, and the cases of prem chand nuskur v. mokshoda debi (1887).....
Judgment:

Banerjee, J.

1. In these appeals, which arise out of applications for execution of certain rent decrees for sums not exceeding Rs. 500, the main question for determination is whether an application for the execution of a decree obtained by two or more joint-landlords for their share of the rent is governed by the special rule of limitation laid down in Article 6 of Schedule III of the Bengal Tenancy Act, or by the general law of limitation, namely, Article 179 of the Second Schedule of Act XV of 1877.

2. If the special law of limitation applies, the applications for execution are barred, unless they can be treated as being in continuation of certain previous applications made within three years from the date of the decrees. If the general law of limitation governs the cases, the applications are in time. The Courts below have held that the applications, which are admittedly made by a co-sharer landlord for the execution of decrees for his share of the rent, are not governed by Article 6 of Schedule III of the Bengal Tenancy Act, and are not barred by limitation; and hence these appeals by the judgment-debtor.

3. Babu Saroda Churn Mitter for the appellant contends that a suit by one of several joint landlords for his share of the rent, being a suit between landlord and tenant, is a suit under the Bengal Tenancy Act, and a decree made in such a suit is a, decree under that Act, although certain provisions of the Act, namely, those relating to the sale of tenures and holdings in execution of rent decrees, may not apply to such a decree. He argues that, if it were otherwise, if the special law of limitation did not apply to these cases, anomalous results would follow, such as this, that whereas a rent decree for a sum not exceeding five hundred rupees, if obtained by all the joint landlords suing together, must be completely executed within three years a co-sharer landlord obtaining such a decree can keep it alive for execution against the tenant for twelve years by making successive applications at intervals of three years. And in support of his contention he relies upon Sections 143 and 144 of the Bengal Tenancy Act, and the cases of Prem Chand Nuskur v. Mokshoda Debi (1887) I. L. R. 14 Calc. 201, Narain Mahton v. Manofi Pattuk (1890) I. L. R. 17 Calc. 489 and Parameswar Nomosudra v. Kali Mahun Nomosudra (1900) I. L. R. 28 Calc. 127. On the other hand Babu Nilmadhub Bose for the respondent argues that the only rent decrees, which can be treated as decrees under the Bengal Tenancy Act, are decrees obtained by the entire body of landlords, that a decree obtained by one of several joint landlords for his share of the rent is one obtained independently of that Act; and that the anomaly pointed out by the other side may be explained by the fact that a co-sharer landlord cannot obtain satisfaction of his rent decree by the sale of the tenure or holding in arrear, and the Legislature may, in consideration of that fact, have thought it fit to allow him a longer time for realizing the amount of his decree. And in support of this argument reliance is placed upon Section 188 of the Bengal Tenancy Act, and the cases of Beni Madhub Roy v. Jaod Ali Sircar (1890) I. L. R. 17 Calc. 390, Durga Charan Mandal v. Kali Prasanna Sarkar (1899) I. L. R. 26 Calc. 727, and Sadagar Sircar v. Krishna Chandra Bath (1899) I. L. R. 26 Calc. 937. It is further contended for the respondent that, even if the cases were governed by the special law of limitation, the applications were not barred, as they were made in continuation of previous applications, which were in time.

4. If the last-mentioned contention of the respondent be well founded, it would not be necessary to consider the question raised by the appellant. But I am unable to accept it as correct, seeing that the previous applications contained no list of properties to be attached, that they were not amended but were rejected, and that the present applications have been made as fresh applications. It is necessary, therefore, to determine the question stated at the outset. That question is not free from difficulty. After a careful consideration of the able arguments on both sides, the conclusion I arrive at is, that the decision of the Courts below that the cases are not governed by the special law of limitation is right.

5. The special law of limitation relied upon by the appellant, namely, Article 6 of Schedule III of the Bengal Tenancy Act, is, by its express terms, limited in its operation to decrees made under that Act or any Act repealed by it. The decrees in these cases were not made under any of the Acts repealed by the Bengal Tenancy Act, as they were made after those acts had been repealed. Then were they made under the Bengal Tenancy Act? It is argued for the appellant that they were so made, because j they were made in suits between landlord and tenant, and all suits between landlord and tenant are suits under the Bengal Tenancy Act. The minor premise in the above reasoning is true, but not so the major. It is true that a suit by a co-sharer landlord for his share of the rent payable by a tenant is a suit between landlord and tenant; but to say that such a suit is one under the Bengal Tenancy Act would be to ignore the general scheme of the Act as indicated by Section 188, which says that anything which is required or authorized to be done by the landlord under the Act must be done by all the joint landlords acting together or by their authorized agent. Sections 143 and 144 of the Act relied upon by the appellant no doubt speak of suits between landlord and tenant generally, but they do not show that a suit by a co-sharer landlord for his share of the rent is, in the face of Section 188, a suit under the Act. Such a suit is maintainable, not as a suit under the Bengal Tenancy Act, but as a suit independent of the Act and outside its scope, as was in effect held in Prem Chand Nuskur v. Mokshoda Debt (1887) I. L. R. 14 Calc. 201 and Jugobundhu Pattuck v. Jadu Ghose Alkushi (1887) I. L. R. 15 Calc. 47. I may here add that the preamble of the Bengal Tenancy Act, which may be referred to as indicating its general scope see Maxwell on the Interpretation of Statutes, 3rd edition, p. 59 and Turquand v. Board of Trade L. R. 11 App. Cas. 286, shews that the Act is intended to amend and consolidate, not the entire law of landlord and tenant, but only certain enactments relating to that law.

6. The old law (see Act X of 1859, Sections 105 and 108 and Act VIII of 1869, B. C., Sections 59 and 64) contained provisions for the execution of rent decrees obtained by co-sharer landlords for their separate shares of the rents as well as those obtained by all the joint landlords acting in concert. But the Bengal Tenancy Act contains provisions only in respect of rent decrees of the latter sort, these being the only rent decrees which, regard being had to Section 188, can come within its scope. It has accordingly been held by a Full Bench of this Court in Beni Madhub Roy v. Jaod Ali Sircar (1890) I. L. R. 17 Calc. 390, that Section 170 of the Act applies only to rent decrees obtained by all the joint landlords acting together. Moreover, the view I take that a decree obtained by a co-sharer landlord for his share of the rent is not a decree under the Bengal Tenancy Act, is in accordance with that taken in the case of Durga Churan Mondal v. Kali Prasanna Sarkar (1899) I. L. R. 26 Calc. 727. There are no doubt several provisions in the Bengal Tenancy Act which are quite general in their terms, and some of those, as for instance those of Section 153 and of Article 3 of Schedule III have been held applicable to suits by or against one of several joint landlords. See Narain Mahtan v. Manofi Pattuk (1890) I. L. R. 17 Calc. 489 and Parameswar Nomosudra v. Kali Mohun Nomosudra (1900) I. L. R. 28 Calc. 127. But those cases were decided with reference to the language of the provisions of the Act bearing upon them. Thus in the first-mentioned case the words 'amount of rent annually payable by a tenant' occurring in Section 153, were held to include the case of rent payable by a tenant to one of the co-sharer landlords, who collects his rent separately; and in the second case Article 6 of Schedule III of the Act was held applicable to a suit against a co-sharer landlord. Section 188 has no bearing upon either of those two cases, and the decisions in those cases do not militate against the view I take of the meaning and scope of Article 6, which speaks not of decrees for rent, nor of decrees in suits between landlord and tenant, but of 'decrees made under the Act,' which must be held to mean decrees obtained in suits brought in accordance with and not in disregard of Section 188. It is argued for the appellant that as Article 6 of Schedule III is expressly applicable to decrees made under Act VIII of 1869 (R. C.) and Act X of 1859 (repealed by the Bengal Tenancy Act) and a decree obtained by a co-sharer landlord for his share of the rent would be a decree under either of those two Acts, if the suit was brough when those Acts were in force, it would be unreasonable to hold that the article is inapplicable to such a decree where the suit is brought after the repeal of those enactments. The answer to this argument is that the Legislature may have intended to make a change in the law, and there is reason for thinking that a longer time may have been given to a co-sharer landlord to have satisfaction of a rent decree obtained by him than is given to joint landlords acting together, seeing that the latter can obtain satisfaction of their decree by the sale of the tenure or holding in arrear.

7. And this circumstance will explain also the anomaly referred to in the appellant's argument.

8. For these reasons I think the order appealed against is right, and these appeals should be dismissed with costs.

Maclean, C.J.

9. I concur.


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