1. The facts which have given, rise to this appeal may be shortly stated. On 21st January 1930, the respondent obtained a rent decree against three sisters who had jointly inherited a tenure. Thereafter two of the sisters died, and the survivor Bhababhabini relinquished her interest in favour of her reversioners who were her sons, the Ghoses, and her nephews, the Biswases. Then there was an arrangement under which the assets and liabilities thus acquired by these two groups of persons were divided between them in certain proportions, and both the Ghoses and the Biswases undertook to satisfy the rent decree. The Ghoses eventually paid off their share of this liability, but the Biswases failed to pay off theirs. One execution case after another was instituted by the respondent between 1931 and 1939, but every one of them for some reason or another, proved infructuous. In 1935 the superior touzi was sold for arrears of revenue, and, as a consequence of that, the tenure was extinguished. When the execution ease of 1939 was filed, the Biswases, who are respondents here, took the objection that they were not liable to satisfy the decree, as the liability did not attach to them personally but to the tenure, which, at that time, was non-existent. This objection was negatived by the High Court to which an appeal had been taken from the decision of the Courts below in that execution case. The appeal was disposed of in 1942, but meanwhile on 9th January 1941, Section 168A, Ben. Ten. Act, came into force, Sub-section (1) (a) of which is in these terms:
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 and sale of any moveable 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 application is made for the execution of such a decree or certificate.
2. In 1942 the appellant proceeded to execution against the other properties of the Biswases, and was then met with the objection that under Section 168A (1) (a) such execution was not maintainable. It was contended on behalf of the Biswases that though the tenure has ceased to exist, the proviso to Clause (a) of Sub-section (1) did not apply. The first Court disallowed this objection, but the lower appellate Court has upheld it, and hence this appeal by the decree-holder. The main point taken in answer to the appeal was that although the proviso to Sub-section (1) (a) would appear to give the decree-holder the right now to proceed against the other properties of the Biswases, because the tenure no longer exists, this proviso is not really attracted. The term of the tenancy expired when the tenure was extinguished in 1935, but that event did not occur before an application was made for execution of the decree there having been more than one such application between 1931 and 1935. The tenure actually expired after several such applications had been made. Alternatively, it has been argued that the proviso does not apply because the provisions of this section are not retrospective and therefore, when the proviso says 'the term of the tenancy expires', it contemplates a tenancy which expires after the date when the Act came into force; in other words, before a decree for arrears of rent can be executed against the property of the judgment-debtor other than the tenure or holding in default, it will have to be shewn that the tenancy expired after 9th January 1941.
3. For the first alternative argument the case in Atul Chandra v. Upendra Narayan : AIR1942Cal478 has been relied upon, and, in support of the second, the case in Swarna Manjuri v. Fakir Chandra : AIR1944Cal203 has been cited. In the first-mentioned ease, a landlord in execution of a decree for arrears of rent brought the defaulting tenure to sale and purchased it himself in 1932. As the sale satisfied only a portion of the decree, the landlord toot out execution for the balance, and in due course effected an attachment of other properties of the judgment-debtor, which attachment was subsisting when Section 168A, Ben. Ten. Act, came into force. The judgment-debtor sought to have the property released from attachment under Sub-section (2) of Section 168A, which provides for the removal of an attachment subsisting on the date of the commencement of the Bengal Tenancy Amendment Act, 1940, made in execution of a decree to which Sub-section (1) applies. On behalf of the decree-holder, it was contended that he had the right to proceed against the other property of the judgment debtor by reason of the proviso to Section 168A, Sub-section (1) (a), because the tenure in default had ceased to exist by merger in consequence of the landlord's purchase of it in the execution sale of 1932. It was held that the proviso did not apply where a tenure was sold in execution of the very decree, for the balance due under which, the subsequent execution was started. This determination was founded upon considerations of fairness. But in the judgment another reason was also suggested, for the learned Judges stated that in their opinion the proviso contemplated a ease where the defaulting tenure did not exist at the initial stage when the decree was first sought to be executed. 'In our opinion,' to quote a passage in the judgment,
the words 'before an application is made for execution of such a decree' as used in the proviso refer to the first or initial application for execution, and not to the subsequent proceeding which is started by the landlord after the defaulting tenure is purchased by him in execution of the decree.
4. We do not think it necessary to go so far as to adopt the view contained in the words just quoted. The actual decision in Atul Chandra v. Upendra Narayan : AIR1942Cal478 was that the proviso does not apply when the tenure has been obliterated by reason of the fact that it was previously purchased by the landlord in execution of the very decree for the execution of which the application under consideration is being made. We respectfully agree with this conclusion, and we think that it is in accordance with the principle underlying Section 168A, the scheme of which is to protect the other properties of a tenant from an execution for arrears of rent which the landlord could very well levy against the tenancy in respect of which the default occurred. It would follow that if such execution has already been levied by the landlord against the tenancy in default, it would be against the spirit of the provisions embodied in Section 168A to permit the landlord to proceed against the other properties of the judgment-debtor for further satisfaction of the self-same decree for arrears of rent.
5. In the other case in Swarna Manjuri v. Fakir Chandra : AIR1944Cal203 , a landlord who had obtained a decree for arrears of rent in respect of a tenure realised a portion of his dues by execution sale of the defaulting tenure which he himself purchased at the auction. In 1941, after Section 168A came into force, he applied for execution for the balance of his decretal dues by attachment and sale of other properties of the judgment-debtors and he claimed that the proviso to Sub-section (1) entitled him to do so. It was held that he was not so entitled under the proviso. The facts of this case were similar in essentials to those in Atul Chandra v. Upendra Narayan : AIR1942Cal478 , and as Roxburgh J. pointed out, the Court was returning the same answer as that which was given in the earlier case. But the view expressed in the earlier case, that the words 'before an application is made for execution of such a decree' in the proviso refer to the first or initial application for execution and not to the subsequent proceeding started by the landlord after the defaulting tenure was purchased by him, was not followed. Instead, it was held that the words refer 'to the particular application which is otherwise barred under Sub-section 1 (a) but for the operation of the proviso.' This view, it may be noted, has been adopted in the later case in Lakshan Chandra v. Birendra Kumar : AIR1945Cal24 , and we respectfully agree with it.
6. Now the application referred to in the proviso might be one made after Section 168A came into force, or it might be one commenced before, but pending at that time. That Section 168A contemplates applications of the latter kind follows from the language of Sub-section (2):
In any proceeding pending on the date of the commencement of the Bengal Tenancy (Amendment) Act, 1940, in execution of a decree or certicate to which the provisions of Sub-section (1) apply....
It is clear that the bar to execution against the property of the judgment-debtor other than the defaulting tenancy, which Sub-section (1) contains, is raised also in cases where the application was made before the section came into force. The proviso which constitutes an exception to Sub-section (1), therefore, extends to embrace applications made before the Amending Act came into force. Then, the proviso speaks of the term of the tenancy expiring before an application is made for execution. Expiry before the making of an application which was made before the Act came into force clearly is not an expiry taking place after the Act came into force. For this reason, it cannot, in our opinion, be held that the word 'expires' refers only to such expiry as takes place after the commencement of the Amending Act of 1940. With great respect, we find ourselves unable to agree with this view expressed by Roxburgh J. in Swarna Manjuri v. Fakir Chandra : AIR1944Cal203 . In our judgment Sub-section (2) by attracting Sub-section (1) thereby attracts the proviso to Sub-section (1), the result being that the word 'expires' in the proviso is extended to expiry before the Amending Act came into force.
7. In the present case, the rule applied in Atul Chandra v. Upendra Narayan : AIR1942Cal478 and Swarna Manjuri v. Fakir Chandra : AIR1944Cal203 does not apply. The extinction of the defaulting tenancy has not taken place here by reason of purchase by the landlord in execution of a decree, for the unsatisfied balance of which he is again seeking to levy execution. Here the obliteration of the tenancy has occurred as a result of annulment by a stranger who purchased the superior interest in revenue sale. We see no reason why the landlord should not get the benefit of the proviso to Sub-section (1). True it is that the tenancy expired before the Amending Act came into force, but the proviso extends to such an expiry. Further, we accept the view expressed in Swarna Manjuri v. Fakir Chandra : AIR1944Cal203 and Lakshan Chandra v. Birendra Kumar : AIR1945Cal24 that the word 'application' in the proviso refers to the particular application for execution against the other properties of the judgment-debtor, which but for the provisos, would have been barred under Sub-section 1 (a). The appeal is allowed. The decision of the appellate Court is set aside and that of the trial Court restored. The appellant will be entitled to the costs of this appeal. The hearing fee is assessed at three gold mohurs.
8. I agree.