1. This appeal is on behalf of the judgment-debtors and is directed against an order dated 27-11-1945, passed by the learned Second Subordinate Judge of Hoogly by which an objection preferred by the appellants under Section 168A, Ben. Ten. Act, was rejected.
2. The material facts are the following. On 9-6-1942, the respondent brought a suit, being Title Suit No. 2 of 1943, in the Court of the Second Subordinate Judge of Hooghly, asking for specific performance of a contract as also the recovery of a sum of Rs. 1829-12-10. The case upon which these claims were made was of a somewhat complicated character. Shortly stated, the plaintiff's case was that a certain patni, namely lot Santoshpur was sold, for the arrears of the Bengalee year 1342 and purchased by the appellants. The defaulting patnidar brought a suit for having that sale set aside but during the pendency of that suit the patni wa3 sold again and purchased by a third party named Bata Krishna Mandal. This Bata Krishna Mandal was added as a party to the suit already brought by the old defaulting patnidar and ultimately by the decree passed in that suit both the second and the third patni sales were set aside. Then there was a fourth sale for default in respect of the Bengalee year 1345 and this time the patni was purchased by the respondent himself who was the superior proprietor. It was alleged in the plaint that after the respondent's purchase of the patni, the appellants approached him for a re-settlement with them and on 4-11-1939 an order, agreeing to such re-settlement, was made. The plaint proceeded to state that on the basis of that resettlement the appellants went into possession of the patni and were recorded as patnidars in the papers of the respondent; that they made certain payments as patnidars; but that a large amount of the rent had fallen into arrears and the appellants had also not executed an iden-ture of lease as stipulated. On these allegations, the plaintiff asked that a decree might be passed in his,favour for specific performance of the contract for patni settlement and also a money decree on eitheriof two alternative grounds. If it was held that the appellants were liable to perform specifically the contract for settlement of the patni, a decree might be passed against them for rent, but if the Court held that the plaintiff was not entitled to specific performance, then a decree might be passed for a certain amount as damages.
3. On that plaint an ex parte decree was-passed on 28-1-1944. The prayer for specific performance was allowed and it was stated that 'the plaintiff will get the amount claimed.' The heading of the decree describes the suit as one for specific performance of contract and recovery of arrears of rent and cesses with interest.
4. It was this decree which is being sought to be executed and so far as the money portion is concerned, execution is being sought to be levied against properties other than the tenure in question. The objection of the appellants which the learned Subordinate Judge has turned down was the obvious one under Section 168A, Ben. Ten. Act, namely, that the decree being one for arrears of rent, could not be executed by the attachment or sale of any property of the judgment-debtors other than the tenure to which the decree related. The learned Judge held this contention to be untenable on the ground that since the specific performance decreed by the Court had not yet taken place and since no registered indenture of lease had been executed, there was no tenure yet and accordingly no objection under Section 168A which presupposed existence of a tenure could possibly be maintained.
5. It was contended on behalf of the appellants that in taking the view which he did, the learned Judge really went behind the decree. The decree, it was said, was a decree for rent and the executing Court was not at liberty to treat it as any other kind of decree. On behalf of the respondent, it was contended that the view taken by the learned Judge below was right, since an objection under Section 168A could only be taken by a tenant when there was or had been a tenancy but not where the tenancy had yet to come into existence. In aid of this argument, it was contended that no patni tenure could come into existence in law until a registered indenture had been executed.
6. It appears to us that the contention between the parties can be disposed of on a short ground. It may be, as the learned Judge has observed, that no tenure has come into existence yet; but at the same time it cannot be overlooked that the decree which is being sought to be executed is a decree which gave effect to one of the prayers of the plaintiff and did not give effect to the other. The decree was not passed for any sum of money on account of damages; it was passed for an amount as rent and it was linked up with the decree for specific performance. The learned advocate for the respondent was, in our view, right in saying that a decree for rent in the circumstances of the present case could be explained only on the basis that on the specific performance of the contract as ordered, the decree for money would become a decree for rent. But an answer to the claim of his client to execute the decree against other properties of the appellants can be found in that very circumstance. If the decree be a composite decree, directing the execution of an indenture of patni lease and making a decree for a sum of money as rent on the basis that the lease will be executed, the decree-holder cannot, in our view, separate the two so as to remove from the amount decreed its character of rent and then execute the decree against other properties of the judgment-debtor on the basis that it is not rent. The learned advocate for the respondent contended that in order that Section 168A might apply, there must be a tenure or holding in existence. The matter is not altogether clear but taking the decree actually passed in the present case as it is, we find no reason why the section which speaks of 'the decree for arrears of rent due in respect of a tenure or holding' cannot be said to apply in the present case and why the decree that is being sought to be executed cannot be said to be a decree in respect of a tenure or holding. Be that as it may, all that we are concerned to decide in the present appeal is whether the respondent is entitled to execute the money portion of the decree against properties of the appellants other than the tenure concerned. In our opinion, he is not. He must accept the decree as it is and accept the position that the amount awarded to him by it is rent. If the decree as a decree for rent is up till now a decree of only a conditional character and will become a real decree for rent only after the indenture of lease has been executed, he must wait for executing the money portion of the decree till he succeeds in obtaining a lease. Whether other defences will then be available to the appellants it is not necessary for us to say, non it is necessary to make any reference to certain subsequent developments which were brought to our notice.
7. In our opinion, the respondent is not entitled to break up the integrity of the decree and treat the money portion as a simple decree for money, thus enabling himself to proceed in execution against any properties of the judgment-debtor In so far as his present execution case relates to the realisation of this sum out of other properties of the judgment-debtor, the objection under Section 168A must prevail and the execution case to that extent, must be dismissed.
8. For the reasons given above, the appeal is allowed, the judgment and order of the learned Judge dated 27-11-1945 are set aside and it is ordered that the respondent's execution case in so far as it relates to the realisation of the decretal money out of other properties of the appellants, be dismissed. The appellants are entitled to their costs from the respondent. The hearing fee is assessed at three gold mohurs.
9. No orders are necessary on the application and the connected rule.