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Amulya Chandra Roy and ors. Vs. Pashupati Nath and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberFull Bench Ref. No. 3 of 1950, in A.F.A.O. No. 63 of 1949
Judge
Reported inAIR1951Cal48,55CWN385
ActsCode of Civil Procedure (CPC) , 1908 - Section 51; ;Bengal Tenancy Act, 1885 - Section 168A(1); ;Tenancy Law
AppellantAmulya Chandra Roy and ors.
RespondentPashupati Nath and anr.
Appellant AdvocateJagdish Chandra Ghose, Adv.
Respondent AdvocateAtul Chandra Gupta, ;Chandra Sekhar Sen and ;Purushottam Chatterjee, Advs.
DispositionAppeal dismissed
Cases Referred & Pratul Chandra v. Naresh Chandra
Excerpt:
- g.n. das, j.1. this reference to a f. b. has arisen out of a proceeding in execution of a decree passed in a suit for arrears of rent of a tenure which were initiated & continued in accordance with the provisions of chap. xiii, bengal tenancy act.2. the decree for rent was passed in 1936. this decree was executed by the applts. by the arrest of judgment-debtors. the judgment-debtors filed a petn. of objection under section 47, c. p. c. on the ground that they are not liable to arrest as they are not possessed of sufficient means to pay the amount of the decree. the subordinate judge, asansol, overruled the objection filed by the judgment-debtors & directed the judgment-debtors to pay the dues of the decree-holders within two weeks failing which a writ for arrest was directed to be issued......
Judgment:

G.N. Das, J.

1. This Reference to a F. B. has arisen out of a proceeding in execution of a decree passed in a suit for arrears of rent of a tenure which were initiated & continued in accordance with the provisions of chap. XIII, Bengal Tenancy Act.

2. The decree for rent was passed in 1936. This decree was executed by the applts. by the arrest of judgment-debtors. The judgment-debtors filed a petn. of objection under Section 47, C. P. C. on the ground that they are not liable to arrest as they are not possessed of sufficient means to pay the amount of the decree. The Subordinate Judge, Asansol, overruled the objection filed by the judgment-debtors & directed the judgment-debtors to pay the dues of the decree-holders within two weeks failing which a writ for arrest was directed to be issued. The judgment, debtors preferred an appeal to the Ct. of the Dist. J. The appeal was allowed & the prayer for arrest of the judgment-debtors was refused. Against the order of the Dist. J. the decree-holders preferred an appeal from an appellate order to this Ct. This appeal was heard by Sen & Chunder JJ on 28-6-1950. The learned Judges were of opinion that there was a conflict of opinion between Bench decisions of this Ct. on the question whether the properties which are exempt from attachment & sale in execution of a decree for arrears of rent by virtue of Section 168A, Bengal Tenancy Act, should be left out of consideration in calculating the means of the judgment-debtor for the purposes of Section 61, proviso (b), C. P. C. This question was accordingly referred to a F. B. As the question arose in an appeal from an appellate order their Lordships referred the whole appeal for final decision to the F. B.

3. I shall first deal with the question which has been referred to the F. B. Section 51, C. P. C. prescribes the procedure in execution of a decree. The section lays down that the Ct. may order execution of a decree in the modes stated in Clauses (a) to (e) which are as follows :

'(a) by delivery of any property specifically decreed:

(b) by attachment & sale or by sale without attachment of any property ;

(c) by arrest & detention in prison ;

(d) by appointing a receiver ; or

(e) in such other manner as the nature of the relief granted may require.'

4. Clause (c) provides for execution of a decree by arrest & detention in prison. Section 2, C. P. C., (Amendment) Act XXI [21] of 1936 added a proviso to the section. The proviso placed restrictions on the power of the Ct. executing the decree to direct arrest & detention where the decree was for the payment of money. It provided that in such a case the Ct. shall not order execution by detention in prison unless it is satisfied (a) that the judgment-debtor was guilty of contumacious conduct as set forth in Sub-clauses (i) & (ii); or (b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof & refuses or neglects or has refused or neglected to pay the same; or (c) that the decree is for a sum which the judgment-debtor was bound in a fiduciary capacity to account.

5. In the present case we are concerned with Clause (b) of the proviso. The Amending Act also added an Expln. to Section 51 which reads as follows :

'In the calculation of the means of the judgment-debtor for the purposes of Clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.'

6. The amending of the expln. came to be considered in the case of Manohar Lal v. Debendra Nath, 50 C. W. N. 181 : (I.L.R. (1946) 1 Cal. 145.) It was held that 'as the expln. speaks only of attachment, & not of attachment & sale, in calculating the means of the judgment-debtor the Ct. should not leave out of account the properties belonging to the judgment-debtor which, though they might not be sold, could be attached in execution of the decree.'

This decision, therefore, lays down that the word 'attachment' in the expln. only includes attachment simpliciter & does not include attachment & sale. In a later case Pratul Chandra v. Naresh Chandra, 50 C. W. N 655 : (A. I. R. (33) 1946 cal. 498), the word 'attachment' in the expln. was held to mean attachment 'as a necessary preliminary step for obtaining payment of the decretal amount in the course of a process other than proceedings for sale.' There is thus a clear conflict of opinion between the two Bench decisions on the meaning of the word 'attachment' in the expln. of Section 51, proviso (b).

7. Section 51, Clause (b) provides for execution by attachment & sale or by sale without attachment of any property. There is no express provision in Clauses (a) to (e) of Section 51 for execution of a decree by attachment merely. The object of the proviso is to exclude the properties of the judgment-debtor which cannot be taken in execution of the decree by attaching the same. This indicates that the word 'attachment' contemplates both attachment simpliciter & attachment as a preliminary step to a sale in execution of the decree. It would be unreasonable to hold that the property of a judgment-debtor which can be realised by mere attachment in execution should be taken into account in calculating the means of the judgment-debtor, while his properties which can be realised by attachment followed by sale should be excluded for the said purpose. In my opinion, the word 'attachment' in the expln. includes both attachment simpliciter & attachment leading up to sale.

8. In the present case before the judgment-debtors can come within the expln. they must show that their properties are exempt from attachment in execution of the decree for rent by or under any law or custom having the force of law for the time being in force. The judgment-debtors contend that their properties other than the tenure in arrears are so exempt by virtue of the provisions of Section 168A, Ben. Ten. Act. The Dist. J. has found that the tenancy in arrears is unproductive & of little value. It is not disputed that the judgment-debtors who are big zemindars, are possessed of various kinds of movable & immovable properties which are liable to be taken in execution either by way of attachment or by the process of attachment & sale. The Dist. J. is of the opinion that the said properties are exempt from attachment under Section 168A, Ben. Ten. Act.

9. On behalf of the applts. it is contended that Section 168A merely protects those properties of the judgment-debtors which are liable to be taken in execution by the particular mode of execution by attachment & sale thereof, & does not protect their properties which can be realised by the mere process of attachment. In support of this contention reliance was placed on the decision of Anil Kumar v. Roy Biman Behari, : AIR1944Cal240 .

10. The above decision supports the contention of the applts. that mere attachment unless it is followed by a sale, is not prohibited by Section 168A, Ben. Ten. Act. On behalf of the resps. Mr. Gupta contended that the decision was erroneous. We have therefore to consider the propriety of this decision.

11. Section 168A, (1) Clauses (a) & (b) read as follows :

'168A (1). Notwithstanding anything contained elsewhere in this Act, or in any other law, or in any contract

(a) a decree for arrears of rent due in respect of a tenure or holding, whether having the effect of a rent decree or money decree, or a certificate for such arrears signed under the Bengal Public Demands Recovery Act, 1913, shall not be executed by the attachment & sale of any movable or immovable property other than the entire tenure or holding to which the decree or certificate relates :

Provided that the provisions of this clause shall not apply if, in any manner other than by surrender of the tenure or holding the term of the tenancy expires before an appln. is made for the execution of such a decree or certificate;

(b) the purchaser at a sale referred to in Clause (a) shall be liable to pay to the decree-holder or certificate-holder the deficiency, if any, between the purchase price & the amount due under the decree or certificate together with the costs incurred by bringing the tenure or holding to sale & any rent which may have become payable to the decree-holder between the date of the institution of the suit & the date of the confirmation of the sale.'

12. In Anil Kumar Basu's case, : AIR1944Cal240 the contention was that the expression 'by the attachment & sale' in Section 168A (1) (a) includes attachment simpliciter as also, attachment followed by a sale. In other words, the word 'and' should be construed either conjunctively or distributively. This contention was overruled. The reasons given by the learned Judges were as follows : (1) that the intention of the Legislature has to be ascertained from what the latter has enacted either in express terms or by reasonable & necessary implication. & that a judicial tribunal is bound to give effect to the clear language of the statute even though the consequences are such as could not have been contemplated by the Legislature, & (2) that Section 168A is an encroachment on the rights which the landlord decree-holder had under the ordinary law & that it cannot be extended beyond what is warranted by the actual language of the section.

13. A perusal of Section 168A (1) (a) clearly shows that the Legislature intended that the decree for arrears of rent in respect of a tenancy governed by the Bengal Tenancy Act shall be executed only by a sale of the tenancy in arrears. Clause (b) further indicates that the purchaser at a sale of the tenancy in execution of a decree for rent shall be liable to pay the rent due from the date of the suit till the confirmation of the sale when the title of the judgment-debtor in the tenancy ceases. If the mode of execution by a sale of the tenancy is pursued by the landlord decree-holder, the judgment-debtor is freed from the obligation to pay the rent decreed as also the subsequent rent. The underlying idea obviously is that the rent due to the landlord must be limited to the security afforded by the tenancy. If Section 168A (1) (a) is widely construed & the word 'and' is taken to have been used in the sense of & or, there is no question that the protection intended to be given to the tenant by the Legislature will extend to all movable & immovable proper ties of the tenant other than the tenancy in arrears. The question is whether the terms of Section 168A are so explicit as to exclude the above interpretation.

14. The modes of execution of a decree are specified in Section 51, C. P. C. When the Legislature used the words 'attachment & sale' in Section 168A (1) (a) it obviously had in mind the mode of execution by attachment & sale mentioned in Clause (b) of Section 51, C. P. C. Section 51 does not separately specify mere attachment as a mode of execution. So the expression 'attachment & sale' in Section 51(b) must include both attachment simpliciter. & attachment & sale of any property whichever is appropriate.

15. Section 60, Clause (1), C. P. C., states :

'The following property is liable to attachment & sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank-notes, cheques, bills of exchange, hundis, promissory notes, Govt. securities, bonds or other securities for money, debts, shares in a corporation &, save as hereinafter mentioned all other saleable property, moveable or immovable belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf.'

16. It is to be noted that many of the items of property mentioned in Section 60(1) are properties which are realisable in execution by the mere process of attachment, no sale being necessary or permissible. As such the words 'attachment & sale' in Section 60(1) must mean attachment simpliciter as also attachment followed by sale in execution, whichever is appropriate to the particular species of property which is sought to be taken in execution. If this view is taken of the words 'attachment & sale' in Section 168A (1) (a) it cannot be said that those words are being given an interpretation which is unwarranted by the actual language of this section.

17. Section 168A is a remedial provision inserted for the benefit of the tenants. The principle of construing a remedial statute was thus enunciated by Mahajan J. in the case of Ram Taran v. Mrs. D. J. Hill, .

'The words of a remedial statute must be construed so far as they reasonably admit so as to secure that the relief contemplated by the statute shall not be denied to the persons intended to be relieved.'

In the same case Mukherjea J. stated as follows :

'The language is certainly not happy but mere in-appropriateness of language would not justify us in adopting an interpretation which leads to anomalous results & frustrates the very object of the legislation. It is more reasonable-to hold, as Maxwell says (Interpretation of Statutes, 9th Edn. p 85) that the Legislature expressed its intention in a slovenly manner than that a meaning should be given to the words which could not have been intended.' (p. 306).

18. In my opinion the words 'attachment & sale' used in Section 168A (1) (a), must be construed in a broad sense so as to include attachment simpliciter & attachment as a preliminary step to a sale of the property in execution. Mr. Gupta referred us to Maxwell's Interpretation of Statutes, 9th Edn. p. 244, & the eases of Lysons v. Andrew Knowles & Sons Ltd, (1901) A. C. 79 : (70 L.J.K. B. 170), The King v. Governor of Brixton Prison; Ex Parte Bidwell, (1937) 1 K. B. 305 at p. 313 : (106 L. J. K.B. 599), Hutchinson v. Jauncey, (1950) 1 K. B. 574 at p. 578; Chairman, Howrah Municipality v. Khettra Kristo, 10 C. W. N. 1044 at p. 1050 : (33 Cal. 1290). They support his submission that the word 'and' has been construed in appropriate cases as 'or' where such a reading effected beyond reasonable doubt the intention of the Legislature.

19. The first reason which was given by the D. B. in Anil Kumar Basu's case, : AIR1944Cal240 does not in my opinion stand in the way of interpreting Section 168A so as to bring out the substantive intention & meaning of the section.

20. The second reason given by the Bench is also without any basis. The Bengal Tenancy Act was intended to regulate the relationship of landlords & tenants. The Act contains provisions which depart from the ordinary law applicable to execution of decrees for money. In construing Section 168A this consideration should not deter the Ct. from giving effect to the intention of the Legislature, if the words used are not rigid enough to exclude such a construction. In my opinion the decision in Anil Kumar Basu's case, : AIR1944Cal240 in so far as it lays down that Section 168A (1) does not protect the properties of a tenant judgment-debtor which can be taken in execution by mere attachment, is not correct.

21. It is urged on behalf of the applts. that the decision in Anil Kumar Basu's case, : AIR1944Cal240 was followed by a S. B. in the case of Sudhir Krishna v. Satish Chandra, : AIR1944Cal418 . An examination of this case, however, shows that the meaning of the expression 'attachment & Sale' occurring in Section 168A (1) (a), though raised in that case, was not decided. The question in that case was whether a receiver could be appointed of the properties of the judgment-debtor in execution of a decree for arrears of rent. The S. B. was of opinion that even if the judgment-debtor's other properties might be exempt from attachment, there was no bar to a receiver being appointed in respect of such properties on the authority of the decision in Rajindra Narain v. Sundar Bibi, .

22. The conclusion, therefore, follows that in calculating the means of judgment-debtors, their properties which are liable to attachment simpliciter or to attachment followed by a sale, should be excluded where the decree under execution is one for arrears of rent of a tenancy governed by the Bengal Tenancy Act. The question referred to the F. B. is answered accordingly.

23. It was further contended on behalf of the applts. that the expln. in Section 51, proviso Clause (b), C. P. C. contemplates properties which are absolutely exempt from attachment in execution of a decree. This contention is unsustainable because the words are : 'exempt from attachment in execution of the decree;' that is, the decree execution whereof is sought by the arrest & detention of the judgment-debtors.

24. It was also contended that the tenancy in question was one which was not governed by the Bengal Tenancy Act & as such Section 168A, Bengal Tenancy Act has no application to the tenancy & can confer no protection on the judgment-debtors. Whether the tenancy is governed by the Bengal Tenancy Act or not depends on the purpose for which the lease was taken. In the present case it is admitted that there was a lease executed in 1874 creating the tenancy. The lease was not produced in the Ct. below. As such the primary evidence showing the purpose for which the lease was taken is not before the Ct. Moreover, the suit for arrears of rent, the decree wherein is being executed, was initiated & prosecuted in accordance with the provisions of chap. XIII, Bengal Tenancy Act. The Settlement record records the tenancy as one governed by the Bengal Tenancy Act. The only fact on which reliance is placed is that the pltfs. filed a later suit for rent in the money file. This is merely an administrative matter. In view of the facts stated above it cannot he said that the tenancy is not governed by the Bengal Tenancy Act.

25. All the contentions raised in the appeal accordingly fail & this appeal must be dismissed.

26. The parties will bear their own costs in the appeal & in the reference.

Harries, C.J.

27. I agree.

28. In my opinion the words 'exempt from attachment in execution of the decree'' appearing in the expln. to Section 51, C. P. C. mean exemption from all forms of execution involving attachment of property. To prohibit attachment is tantamount to prohibiting all forms of execution involving attachment of property. Without attachment execution cannot proceed against, for example, a fund standing to the credit of a judgment-debtor in Ct. neither can it be levied on immovable or movable property which must first be attached & then sold. Property liable to attachment & sale as well as property liable to attachment only falls within the purview of the expln. to Section 51 of the Code.

29. Further, what must be excluded in computing the means of the judgment-debtor according to this expln. is the whole of his property which is exempt from attachment of the particular decree under execution. It was contended that only such property was excluded as was excluded in execution of decrees generally, as for example, properties mentioned in the proviso to Section 60, C. P. C. The words in the expln. however, are 'exempt from, attachment in execution of the decree' that is the particular decree under execution. To hold otherwise would be to defeat any special provision exempting property of the judgment-debtor from attachment in execution of some particular form of decree. Such property would be exempt from attachment, but it could be indirectly made liable by execution by way of arrest. If the property exempt from attachment could be regarded as part of the means of the judgment-debtor, he might well be compelled to satisfy the decree out of such property to avoid arrest & detention.

30. Mitter J. construed the words in this manner in the case of Pratul Chandra v. Naresh Chandra, 50 C. W. N. 655 : (A.I.R. (33) 1946 Cal. 498) & in my judgment that view is well founded. That being so, all property not liable to attachment & sale under Section 168A, Bengal Tenancy Act, must be excluded in ascertaining the judgment-debtor's means in course of an execution, by way of arrest & detention, of a decree for rent whether such has the force of a rent decree or only of a simple money decree.

31. The question, therefore, for decision is what property is exempt from attachment in execution of a decree for rent by reason of the provisions of Section 168A, Bengal Tenancy Act. By the express terms of the section all the immoveable & movable property of the judgment-debtor other than the defaulting tenure or holding is exempt from attachment & sale in execution of the decree for rent. Mukherjee J. in a number of cases, the last of which being Monohar Lal v. Debendra Nath, 50 C. W. N. 181: (I.L.R. (1946) 1 Cal. 145) has held that only such movable & immovable property is exempted as is the subject-matter of execution by attachment followed by sale. According to the learned Judge attachment followed by sale is a recognised form of execution & the judgment-debtor's property is only exempt from such form of execution by reason of Section 168A, Bengal Tenancy Act. What is prohibited by Section 168A is execution in some form or another under the Civil P. C. The words 'execution by attachment & sale' in the popular sense mean execution by first attaching the property & then selling it, but that is not the meaning given to the words in the Code itself.

32. There can be no doubt, attachment without sale is a form of execution & such is dealt with in Order 21 of the Code. The various forms of execution of a decree are set out in Section 51 of the Code & it is significant that attachment standing by itself is not included in the various forms stated. The word only appears in Section 51(b) in conjunction with the word 'sale.' The forms stated in that sub-section are attachment & sale & sale without attachment.

33. It was suggested that attachment as a form of execution would be included in Section 51(e) which provides for execution in a manner suitable to the relief granted by the decree. In my view, however, the words 'attachment & sale' in Section 51(b) were intended to include execution by attachment & sale & by attachment not followed by sale. This, I think, is clear from the opening words of Section 60 of the Code which deals with property liable to execution by attachment & sale. Sub-section (1) provides that 'the following property is liable to attachment & sale in execution of a decree.' Then follows a list of a large number of various kinds of property. A perusal of the kinds of property enumerated makes it abundantly clear that it includes properties which are both attached & sold in execution & properties which are only attached & not sold. For example, money & notes are mentioned among the properties liable to attachment & sale though such money & notes are not sold in execution, but only attached. Again, debts are mentioned which would include decretal debts. The latter may be attached & sold in execution or they may be attached only & realised as provided in Order 21. Lands & buildings are mentioned & such must be attached & sold in execution nevertheless all the properties mentioned are said by the words of Sub-section (1) of Section 60 to be liable to attachment & sale in execution of a decree. Clearly the words 'attachment & sale' when used in Sections 51 & 60 include not only attachment followed by sale but attachment not followed by sale, but by some other procedure.

34. This becomes clearer still when the terms of the proviso to Section 60(1) are considered. The proviso sets out various kinds of property which are liable neither to attachment nor sale. Why should the proviso deal with exemption from either attachment or sale, if the words 'attachment & sale' appearing in the opening words of Section 60(1) meant only attachment followed by sale.

35. In my judgment it is clear that the words attachment & sale appearing in Sections 51 & 60 of the Code include both forms of execution, namely, attachment followed by sale & attachment not so followed. The same meaning must, I thing, be given to the phrase in Section 168A, Bengal Tenancy Act, & therefore it must be held that what is exempted from execution by that section is all property other than the defaulting tenure or holding which is the subject-matter of execution by attachment & sale or by attachment without sale.

36. Mukherjea J. was invited in the case of Anil Kumar v. Roy Biman Behari, : AIR1944Cal240 , which was the first of the series of cases which he decided on the meaning of Section 168A, Bengal Tenancy Act, to construe the words 'attachment & sale' as attachment or sale, but he declined to do so. In his view the words should be construed strictly & as their meaning was clear he held that they could not be read disjunctively. The learned Judge pointed out that Section 168A, Bengal Tenancy Act, took away one of the ordinary rights of a citizen, namely, the right to execute a decree against any of the property of a judgment-debtor. Such rights could only be taken away by clear & express words in a statute & the words used could not be construed loosely to include more than the words in their ordinary meaning covered. With great respect to this very learned Judge, I find it difficult to appreciate what he meant by saying that Section 168A, Bengal Tenancy Act, took away one of the ordinary rights of a subject. In one sense all rights granted by law are ordinary rights until such law is repealed or varied. If, however, any distinction can be drawn between various rights, it appears to me that Section 168A, Bengal Tenancy Act, interfered with extra-ordinary rights rather than with ordinary rights. The Bengal Tenancy Act gives landlords rights in respect of rent decrees which are not given to landlords of property not covered by that Act & such rights might be regarded as extraordinary rather than ordinary rights. But even if Section 168A, Bengal Tenancy Act, be regarded as an interference with ordinary rights, it cannot be overlooked that the section is a remedial one. It was intended to afford relief to tenure-holders & tenants & it should, therefore, be construed, if possible, to give the relief intended.

37. Remedial statutes must be construed liberally & wherever it is possible they should be construed so as to grant the relief intended rather than to deny such relief. Such a construction was given to the Workmen's Compensation Acts in England : see Lysons v. Andrew Knowles & Sons, Ltd., (1901) A. C. 79: (70 L. J. K. B. 170).

38. These Acts were intended to give injured workmen compensation for personal injury by accidents arising out of & in the course of their employment & various provisions of the Acts were construed from this point of view.

39. In Rai Ram Taran v. Mrs. D.J. Hill, Mahajan J. dealt with the construction to be given to remedial provisions & observed at p. 302 as follows :

'The words of a remedial statute must be construed so far as they reasonably admit so as to secure that the relief contemplated by the statute shall not be denied to the persons intended to be relieved.'

40. It appears to me, therefore, that if necessary Section 168A, Bengal Tenancy Act, should be construed liberally in favour of the tenure-holder or tenant, but that of course does not mean that a forced construction should be given to words or that words should be held to mean what obviously they do not or cannot mean.

41. I have already held that the words 'attachment & sale' are used in the Code to cover all forms of execution of which attachment is an integral part & therefore there is no necessity to give these words appearing in Section 168A, Bengal Tenancy Act, any other meaning than that given to them in the Code of Civil Procedure. Assuming, however, that the words literally interpreted include only attachment followed by sale, nevertheless they should in my view, be construed more liberally to ensure that the relief intended should be given. In short the words 'attachment & sale' should be construed as attachment or sale, that is, disjunctively & not conjunctively. I am conscious of the fact that 'and' should not be too readily construed as 'or.' As observed by Scrutton L. J. in Green v. Premier Glynrhonwy State Co., (1928) 1 K. B. 561 at p. 568 : (97 L. J. K. B. 32) :

'You do sometimes read 'or' as 'and' in a statute ...But you do not do it unless you are obliged, because 'or' does not generally mean 'and' & 'and' does not generally mean 'or'.'

42. However 'and' may legitimately be construed as 'or' when the intention of the (Legislature is clear & when any other construction would tend to defeat such intention. A recent example of such a construction is seen in the case of The King v. Governor of Brixton Prison; Ex parte Bidwell, (1937) 1 K. B. 305 : (106 L.J.K.B. 599) where 'and' was construed as 'or' as the intention of the enactment was clearly in favour of such a construction.

43. The intention of the Legislature in enacting Section 168A, Bengal Tenancy Act, is clear. It was intended that the landlord should only look to the defaulting tenure or holding to satisfy his decree for rent. If there is any ambiguity in Section 168A (1) (a) such intention is manifest from the provisions of Section 168A (1) (b) which provides that if the decretal amount be not realised by the sale in execution of the defaulting tenure or holding the deficiency must be made good not by the defaulting tenant or tenure-holder, but by the auction-purchaser who must also make good the costs of the sale & the arrears of rent which had accumulated since the institution of the suit. These provisions make it abundantly clear that the defaulting tenure or holding was intended to discharge all the liabilities as far as the tenure-holder or tenant was concerned & the landlord had to look elsewhere to make good any deficiency, costs & rent which had fallen due during the litigation. The auction-purchaser was alone made liable for these dues & it is expressly provided that the sale could not be confirmed until he discharged these liabilities of the tenure-holder or tenant.

44. If such was the clear intention of the Legislature a too strict construction of the words 'attachment & sale' in Section 168A, Bengal Tenancy Act, would go a long way to defeat such intention, whereas reading the word 'and' as 'or' would give the tenure-holder or tenant a far greater measure of relief. No possible construction of the words can give the defaulting tenure-holder or tenant the whole of the relief intended because even the most liberal construction of the words would not exclude execution by personal arrest & detention or by the appointment of a Receiver. That such forms of execution are permissible was held in the case of Sudhir Krishna v. Satis Chandra, : AIR1944Cal418 & Pratul Chandra v. Naresh Chandra, 50 C. W. N. 655 : (A. I. R. (33) 1946 Cal. 498) & there can, I think, be no question that these cases were rightly decided.

45. Even if the fullest relief cannot be given to the tenure-holder or tenant by a liberal construction of the words in question, nevertheless I see no reason why such a construction should not be given if it ensures greater relief than the tenure-holder or tenant would otherwise obtain. To give the words 'attachment & sale'' the construction given to them in the cases I have mentioned is to deny the tenant protection from all forms of execution involving attachment, but not involving sale as a consequence.

46. I, therefore, agree to the order proposed by my brother Das.

Banerjee, J.

47. I agree.


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