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Shyama Charan Mitter Vs. Debendra Nath Mukerjee - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1900)ILR27Cal484
AppellantShyama Charan Mitter
RespondentDebendra Nath Mukerjee
Cases ReferredAnund Chunder Roy v. Sidhy Gopal Misser
Excerpt:
second appeal - execution of rent decree valued at less than rs. 100--bengal tenancy act (viii of 1886), section 153--civil procedure code (act xiv of 1882), section 647. - .....jj.1. this appeal arises out of an application for the execution of a decree for arrears of rent passed in a suit for recovery of rent, the amount claimed in the suit being less than rs. 100.2. the judgment-debtor objected to the execution proceeding. his objection was over-ruled by the munsif, who heard the case in the first instance. there was an appeal preferred against the munsif's decision by the judgment-debtor and that appeal has been dismissed by the district judge. and against the order of the district judge the present appeal has been preferred by the judgment-debtor.3. at the hearing of the appeal a preliminary objection is taken by the learned vakil for the decree-holder respondent, that this appeal is barred by section 153: of the bengal tenancy act. that section.....
Judgment:

Banerjee and Stevens, JJ.

1. This appeal arises out of an application for the execution of a decree for arrears of rent passed in a suit for recovery of rent, the amount claimed in the suit being less than Rs. 100.

2. The judgment-debtor objected to the execution proceeding. His objection was over-ruled by the Munsif, who heard the case in the first instance. There was an appeal preferred against the Munsif's decision by the judgment-debtor and that appeal has been dismissed by the District Judge. And against the order of the District Judge the present appeal has been preferred by the judgment-debtor.

3. At the hearing of the appeal a preliminary objection is taken by the learned Vakil for the decree-holder respondent, that this appeal is barred by Section 153: of the Bengal Tenancy Act. That section enacts that 'an appeal shall not lie from any decree or order passed, whether in the first instance or on appeal in any suit instituted by a landlord for the recovery of rent where '(we refer only to so much of the section as bears upon the present case)' the decree or order is passed by a District Judge, * * * * * * and the amount claimed in the suit does not exceed one hundred rupees * * ''unless * * the decree or order has decided a question relating to title to land or to some interest in land as between parties having conflicting claims thereto, or a question of a right to enhance or vary the rent of a tenant or a question of the amount of rent annually payable by a tenant.'

4. It is admitted by the learned Vakil for the appellant that the amount claimed in the suit for the recovery of rent did not exceed Rs. 100; and it is admitted also that the decree or order appealed against has not decided any of the questions referred to in the section--a decision upon which gives an appeal notwithstanding that the amount claimed does not exceed Rs. 100. But the ground upon which he contends that the appeal is not barred is. that a case like the present does not come within the language of the section, or in other words, that an order passed in a proceeding in execution of a decree for rent is not a 'decree or order passed in any suit instituted by a landlord for the recovery of rent' within the meaning of Section 153. On the other band, the learned Vakil for the respondent contends that such an order does come within the meaning of those words, because, by virtue of the explanation of Section 647 of the Code of Civil Procedure, an application for the execution of a decree is a proceeding in the suit in which the decree was passed.

5. The decision of the question raised in this case, therefore, resolves itself into the determination of the question, whether the term 'suit' in Section 153 of the Bengal Tenancy Act is used in a narrow sense as being terminated by the decree made by the first Court, or in a broad sense as including not only the stages of a suit down to its termination by the decree of the first Court, but also its appellate stage, and also proceedings in execution of the decree made in the suit, the contention on behalf of the appellant being that it is used in the restricted sense, and that on behalf of the respondent being that it is used in its more comprehensive sense.

6. In determining this question we think that the section itself ought in the first instance to be referred to in order to ascertain if it throws any light upon the question. And referring to the section we find that it evidently uses the term 'suit' not in its narrow sense, for it speaks of 'any order or decree passed in the first instance or on appeal in any suit;' thereby indicating that a decree or order passed on appeal is a decree or order passed in a suit. Starting with this indication afforded by the section itself that the term 'suit' is not used in its narrow sense, have we anything to indicate that it is used nevertheless in a narrow sense so far as to exclude proceedings in execution? We must say that neither the language of the section, nor its aim and intention, so far as we can gather the same from the section, would furnish any ground for imposing such a limitation on the meaning of the term 'suit.' Then from Section 647 of the Code of Civil Procedure it appears that applications for execution of decrees are proceedings in suits. It was argued for the appellant that section does not say that they are to be regarded as proceedings in the suits in which the decrees were made. If they are not proceedings in the suits in which the decrees are made, it is difficult to see what other suits they are proceedings in. It was suggested that they are proceedings in suits in the sense of the proceedings being themselves treated as suits. We do not consider that view correct.

7. Then looking to the reason of the thing can we say that there is any reason in favour of the limitation which the learned vakil for the appellant contends for? If Section 153, with the evident object of preventing protracted litigation in cases of small value not affecting any permanent interests, bars an appeal from a decree or order passed in a suit for recovery of rent valued at an amount not exceeding Rs. 100, when such decree does not decide any of the questions referred to in the section, can there be any reason why nevertheless the Legislature should have intended to allow an appeal against an order made in a proceeding for the enforcement of such a decree? We are of opinion that this question must be answered in the negative. There is another argument in favour of the view we take, which is furnished by the rule laid down by this Court, and also the High Court at Allahabad, with reference to a class of cases analogous to the present--we mean cases of orders made in execution of decrees passed in suits of the nature cognizable by Courts of Small Causes. Such orders have been held to be non-appealable by virtue of the provisions of Section 586 of the present Code of Civil Procedure. We may add that the same view was taken under the old Code of Civil Procedure, when Section 27 of Act XXIII of 1861 was the law on the point. The cases in which the abovementioned rule has been laid down are: Lala Kandha Pershad v. Lala Lal Behary Lal (1898) I.L.R., 25 Cal.. 872; Anund Chunder Roy v. Sidhy Gopal Misser (1867) 8 W.R. 112; and Din Dayal v. Patrakhan (1896) I.L.R., 18 All., 481. In these cases upon the construction of a provision of the Statute Book expressed in language somewhat similar to that of Section 153, it was held that a second appeal was barred not only against the decree made in a suit of the Small Cause Court class, but also against an order made in proceedings taken in execution of such a decree. We may say in this ease what Mr. Justice Louis Jackson said in the case of Anund Chunder Roy v. Sidhy Gopal Misser (1867) 8 W.R., 112, just referred to, that though we admire the ingenuity which has distinguished the argument of the learned vakil for the appellant, Dr. Ashutosh Mukerjee, we feel no doubt that the view we take is the correct one.

8. The result is that the preliminary objection must be allowed to prevail, and this appeal dismissed with costs.


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