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Karuna Moyi Banerjee Vs. Surendra Nath Mookerjee and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1899)ILR26Cal176
AppellantKaruna Moyi Banerjee
RespondentSurendra Nath Mookerjee and anr.
Cases Referred and Dagdu v. Pancham Sing Gangaram
Excerpt:
bengal tenancy act (viii of 1885), section 148, clause (h) - bent-decree--decree for arrears of rent--application for execution by the assignee of such a decree--code of civil procedure (act xiv of 1882), section 316. - .....the date of the sale of the tenure in execution of a previous decree for arrears of rent and the date of confirmation of such sale, and it is argued that what was claimed as due to the landlord for the period intervening between those two dates was not an arrear of rent within the meaning of the bengal tenancy act.3. it is difficult to accept this contention as correct. what was decreed was decreed in favour of the landlord: of that there can be no question. the sum claimed was what was payable in respect of the tenure which was held by the defendant, and the only ground upon which it could possibly be said that the amount decreed was not an arrear of rent would be by maintaining that the defaulting tenant's connection with the tenure ceased with the sale and not with the confirmation.....
Judgment:

Francis W. Maclean, K.C.I.E., C.J.

1. All we have to determine is whether the decree in this case is or is not a decree for arrears of rent or a mere money-decree, and, if the former, what is the effect of Sub-section (h) of Section 148 of the Bengal Tenancy Act. In my opinion this is a decree for arrears of rent. Then what is the effect of the sub-section in question which says in effect, that any application to execute a decree for arrears of rent cannot be made by an assignee of the decree unless the landlord's interest in the land has become vested in him. The latter event has not happened, and the decree-holder is the assignee from the landlord of the arrears of rent. This being so, I think the judgment of the Court below is right, and the appeal must be dismissed with costs.

Banerjee, J.

2. I am of the same opinion. The only question raised in this appeal, which arises out of an application by the appellant, who is the assignee of a decree, to execute the same, is, whether the application is barred by Clause (h) of Section 148 of the Bengal Tenancy Act. The Courts below have held that the application is barred, under the clause referred to; and the only way in which the learned Vakil for the appellant seeks to take this case out of the operation of that clause is by contending that the decree in this case was not one for arrears of rent obtained by a landlord within the meaning of the clause. The decree was on the face of it one for arrears of rent claimed by the landlord against a defaulting tenant, as having accrued due between the date of the sale of the tenure in execution of a previous decree for arrears of rent and the date of confirmation of such sale, and it is argued that what was claimed as due to the landlord for the period intervening between those two dates was not an arrear of rent within the meaning of the Bengal Tenancy Act.

3. It is difficult to accept this contention as correct. What was decreed was decreed in favour of the landlord: of that there can be no question. The sum claimed was what was payable in respect of the tenure which was held by the defendant, and the only ground upon which it could possibly be said that the amount decreed was not an arrear of rent would be by maintaining that the defaulting tenant's connection with the tenure ceased with the sale and not with the confirmation of the sale. But Section 316 of the Code of Civil Procedure, which governs the case, is express on the point and as between the parties to the suit, that is, as between the landlord and the defaulting tenant, the title to the property sold vested in the purchaser from the date of the certificate, that is the date of confirmation of sale, and not before That being so, the defaulting tenant still continued to be the holder of the tenure, and what was claimed from him must be treated as an arrear of rent.

4. It was argued by Babu Sarada Charan Mitter that the language of Clause (c) of Section 169 of the Bengal Tenancy Act would go to show that the Legislature intended the landlord's claim against the defaulting tenant fair rent accruing due subsequent to a previous suit for arrears of rent to extend up to the date of sale of the tenure in execution of his decree, not up to any later date. I do not think that the language of Clause (c) of Section 169 can afford any sufficient basis for such a contention.

5. Then we were referred to the cases of Adhur Chunder Banerjee v. Aghore Nath Aroo, (2 C.W.N., 589), and Dagdu v. Pancham Sing Gangaram (1892) I.L.R., 17 Bom., 375, as showing that even before the date of confirmation of sale, an auction-purchaser acquires an inchoate right, which dates from the date of sale, the confirmation of sale relating back to such date. I think that the cases cited are quite distinguishable from the present, as there the question arose, not between the parties to the suit in execution of the decree in which the sale took place, but as between some of the parties to the suit and third parties.


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