1. Two points have been urged in support of this appeal. The first is that the executing court was not right in directing that the eight annas share of judgment-debtors Nos. 4 and 5 in the tenure concerned should be put up to auction in the first instance and that 'if the bidding did not liquidate the decretal dues,' the entire tenure, including the other eight annas share of judgment debtors Nos. 1 to 3, should then be put to auction. The second ground urged is that the executing court was not right in holding that there must be a fresh sale proclamation under Section 163 of the Bengal Tenancy Act for the reason that there had been no bidding at the previous attempt at a sale.
2. The facts, broadly stated, are that the appellant obtained a rent decree on January 13, 1948, against a number of judgment debtors, of whom only five need now be considered. It is stated, and there is no dispute on the point, that judgment-debtors Nos. 1 to 3 who are respondents Nos. 1 to 3 in this appeal, have already paid up a half share of the decretal dues by way of a deposit made in court in a previous execution case. In the present execution, a proclamation of sale was first issued under Section 163 of the Bengal Tenancy Act, but on the date fixed for the sale, which was to be a sale subject to encumbrances, there were no bidders. It appears that thereafter the decree-holder asked for the issue of a fresh proclamation of sale, with power to annul encumbrances, and that prayer was allowed by an order passed on November 9, 1949. Subsequently, the order under appeal was passed and the order of November 9, 1949 was set aside, because the learned Judge thought that the stage of Section 163 had not been passed, inasmuch as the tenure had not actually been put up for auction and necessarily there had been no actual bidding.
3. I shall deal with the second point first.
4. Section 163 of the Bengal Tenancy Act provides that in addition to the particulars, mentioned in Order XXI, Rule 66 of the Code of Civil Procedure, the proclamation of sale shall announce that the tenure or holding will first be put up to auction, subject to encumbrances, and will be sold subject to those encumbrances if the sum bid is sufficient to liquidate the amount of the decree & the costs, and that otherwise, it will, if the decree-holder so desires, be sold on a subsequent date, of which due notice will be given with power to annul all encumbrances. Section 164 of the Bengal Tenancy Act lays down the manner in which the tenure or holding is actually to be put up to sale. The next section is Section 165 which provides for the issue of a fresh sale proclamation, announcing a sale with power to avoid all encumbrances,
'if the bidding for a tenure or a holding at fixed rates put up to auction under Section 164 does not reach a sum sufficient to liquidate the amount of the decree and costs.'
5. The contention of Mr. Sen was that it was not necessary under the section that there must in all cases be some actual bidding. If it were necessary to decide this point, I should be prepared to agree with Mr. Sen, because unless it was held that a case where, in spite of all the preliminary steps having been correctly taken, no bidders appeared, was a case where Section 164 had been complied with, it might in certain cases become wholly impossible to hold any sale at all where in the first, or the second, or the third attempt, no bidders might ever appear. If it is to be held that as a matter of law the parties cannot proceed to the stage of Section 165 unless at some attempted sale, subject to encumbrances, some bidding has taken place, it is clear that in a case where there is a perfectly bona fide absence of bidders even though repeated attempts at a sale have been properly made, the property cannot be brought to sale, with power to annul encumbrances, at all.
6. Mr. Das, who appears on behalf of the respondents, admitted the cogency of this consideration but his suggestion was that the section should be so construed as to mean that there should at least be a second attempt. It appears to me that either the section must be construed in a literal sense and it must be held that some actual bidding is always essential, or it must be held that even a single attempt, though no bidders may appear, is sufficient, provided the sale is otherwise in order. There can be no excuse or reason for drawing a line at the second sale rather than at the first, or any subsequent sale. The only practical way, it seems to me, of construing the section is to hold that a case where no bidders appear is also a case where the bidding does not reach a sum sufficient to liquidate the amount of the decree and costs, because there being no bidding, no sum is offered as the price of the property and necessarily there is no amount which is sufficient to liquidate the decree holder's dues. In a case of no bidding, the amount expected to be realised by the sale is nil and the insufficiency to meet the decretal dues is not a mere deficiency but a total absence of any amount which could be applied to the satisfaction of the decretal amount & costs. A case where there is no amount at all, available for application to the satisfaction of the decree-holder's dues, obviously includes a case where there is some amount, but it is insufficient. The greater includes the less.
7. It is, however, not necessary to decide this point finally in this appeal, because the learned Judge has not only held that there was actually no bidding but also that the tenure 'was not actually put up for auction'. The second finding can only mean that even the process of offering the tenure for sale and doing all things incidental thereto was not gone through. I am of opinion that if all the formalities of holding a sale are gone through, then only the question whether the absense of bidders prevents Section 164 being complied with would arise. But in a case, like the present one where according to the record, nothing whatever by way of holding the sale was done and as soon as the absence of any likely bidders was noticed, the sale was adjourned it seems to me that even the minimum compliance with Section 164 which must in any event be required, was absent. I am accordingly of opinion that on the facts of the present case, the learned Judge was right in holding that there should be a fresh sale proclamation under Section 163 on the ground that Section 164 had not been complied with.
8. The first point arises in the following way. I have already stated that judgment-debtors Nos. 1 to 3 have paid up a half-share of the decretal amount which corresponds to their interest in the tenure. Judgment-debtors Nos. 4 & 5 have, so far as it appears irom the record, paid nothing. In those circumstances judgment-debtors Nos. 1 to 3 made a prayer before the learned Judge which can be best set out in his own words.
'Their case is', observes the learned Judge, 'that the judgment-debtors 4 and 5 who have eight annas share in the tenure in arrears have not paid up their share of decretal dues. So their prayer is that the entire tenure should be advertised for sale but eight annas share of the judgment-debtors 4 and 5 should be put up to auction in the first instance and if the bidding does not reach a sum sufficient to liquidate the decretal dues, the entire tenure shall, thereafter, be put up to auction. The judgment-debtors 1 to 3 are willing to bear costs of service of fresh sale proclamation and publication.' The learned Judge allowed this prayer and has directed the issue of a sale proclamation in terms which I have already set out at the beginning of this judgment.
9. The ground upon which the learned Judge made this order is as stated by him, that the prayer of the judgment-debtors Nos. 1 to 3 was not either unreasonable or inequitable and it was fit to be allowed, inasmuch as the decree-holders would not be prejudiced in any manner whatsoever. On behalf of the appellant Mr. Sen contended that there was no authority in law for splitting up the property offered for sale in the manner the learned Judge had done, however equitable such splitting up might in the circumstances of a case be. Mr. Das, on the other hand, contended on behalf of judgment-debtors Nos. 1 to 3 that while he could point to no specific provision of law authorising the course which the learned Judge had adopted, there was no express bar contained anywhere in any law and that the circumstances of the case were such that the order made by the learned Judge was an eminently fit and proper order. In support of this part of his contention, Mr. Das pointed out that judgment-debtors Nos. 4 and 5 were people in affluent circumstances and there was no reason why the entire burden of the decretal dues should be made to fall on judgment-debtors Nos. 1 to 3 and no good reason why the decree-holder should desire to cast it on them to the complete relief of their fellow judgment-debtors. If the sale was not held in the form directed by the learned Judge, Mr. Das's clients would have put in the balance of the decretal dues as well.
10. In elaborating his contention Mr. Sen submitted that a decree-holder might conceivably refrain from proceeding against a part of the property, or the share of one or some of several judgment-debtors, but judgment-debtors under a joint decree could not insist that the liability under the decree should be distributed as between them according to their choice. With reference to the option which, he said, the decree-holder might probably have, he referred to Clause (a) of Section 168A(1) of the Bengal Tenancy Act, as interpreted by a decision of this Court in the case of -- 'Ramdas Mukhopadhya v. Uday Ghand, AIR 1949 Cal. 228'. There it was held by Blank and Chunder JJ. that within the limit of the tenure or holding, there was nothing to prevent a decree-holder from further limiting the sale to the interest or interests of the judgment-debtor or judgment-debtors against whom he was proceeding, as this would be for the protection of tenants and would save tenants from harassment. Mr. Sen contended that he was not concerned with disputing that proposition which might be correct; but, according to him, the principle could not be extended to judgment-debtors who were under a joint liability in respect of the entire decretal amount.
11. As at present advised, I doubt whether Section 168A(1) (a) does imply that even the decree-holder has the option which the Bench decision cited by' Mr. Sen found in its provisions. As is well known, the primary concern of that section is to provide that, a landlord decree-holder cannot execute a decree for rent, whether it be a rent decree or money decree, against any property other than the entire tenure or holding to which the decree relates except where the tenancy has ceased to exist in other than certain ways. The property which is made liable to execution under that section is the entire tenure or holding and nothing less, and if the object of the section be to limit the rights of the landlord and the liability of the tenant to the tenure or holding concerned, it is difficult to concede that the section yet leaves room for some internal permutation and combination as between the different judgment-debtors at the option of the decree-holders. Such attempts at adjustment of the respective liabilities of the judgment-debtors will give rise to extremely complicated questions and, as far as I can see, the equality of the common liability of all the co-judgment debtors under a joint decree will be very seriously disturbed. Nor is it easy to see how it will be possible to work out the effect of a sale, limited to the interests of some of the judgment-debtors, if it is to operate as a rent-sale and, particularly, if it becomes necessary to sell with power to annul encumbrances.
It is, however, not necessary for us to record a formal dissent from the proposition laid down in the case cited, because we are concerned in the present case with the rights of judgment-debtors. As I have already stated, the contention of Mr. Das was that if there was no express provision of law, authorising such distribution of the decretal liability as the learned Judge had made, equally there was no provision forbidding such distribution. I feel constrained to hold that there is a provision forbidding such distribution which is contained in Section 163 of the Bengal Tenancy Act itself. Sub-section (2) of that section states what shall be offered for sale and sections 164 and 165 state what shall be sold. Under Section 163 the proclamation must announce that 'the tenure or holding' will be put up to auction and since the proclamation relating to a sale under Section 165 must be in the same terms, there must be a similar announcement in respect of a sale under that section as well. Again, proceeding to the actual sale, Section 164 says that 'the tenure or holding' shall be sold in the case of sales, subject to encumbrances and the same provision is repeated in Section 165 in the case of sales with power to avoid all encumbrances.
It is thus clear that what the Act contemplates is that the property offered for sale must be the tenure or holding and that the property which should be sold must also be the tenure or holding. Indeed, the whole scheme of Chapter XIV of the Act, in which sections 163 to 165 occur, is to provide for the sale of an entire tenure or holding for its own arrears of rent and while previously, the landlord could sell less, if he was prepared to be content with a money sale, it is doubtful if he can do so now, in view of the provisions of Section 168A. In any event, he could not be compelled even previously and cannot be compelled now. If that be so, to hold that in a particular base the court may direct under Section 163 that what shall be offered for sale in the first instance will not be the entire tenure or holding but the share of one or more of many co-judgment-debtors will be to import into the section provisions which are not there and which run counter to the clear language and intent of the section. The only alternatives which sections 163 to 165 contemplate are sale subject to encumbrances and sale with power to avoid encumbrances. No other alternative in the form of a sale of anything less than the entire property such as the sale of a share or the sale of a demarcated portion, is within the purview or contemplation of any of those sections. The clear implication of the sections appears to me to be that if a sale under their provisions is to be held, the offer and the sale must both be of the entire tenure or holding, the only condition being that the first offer must be for a sale subject to encumbrances and the second offer, if necessary, for a sale with power to avoid them.
12. If that be the clear import of the sections, hard cases can be no justification for making bad law, -- bad in the sense of being contrary to the provisions of the Statute. All that Mr. Das said as regards the obvious inequity of throwing the entire burden on judgment-debtors Nos. 1 to 3 may well be true. Indeed, Mr. Sen, when asked specifically why his client was not accommodating judgment-debtors Nos. 1 to 3 in some way, could only say that his instructions were to press for what the law allowed. I feel constrained to hold that the law does allow what Mr. Sen's client presses for, although the course adopted in insisting on his legal rights in the form chosen by him may not be very meritorious.
13. For the reasons given above, I am of opinion that the appeal ought to succeed on the first ground taken by the appellant.
14. The appeal is accordingly allowed. The Judgment and the order of the learned Judge are set aside and he is directed to give proper directions as regards the terms of the next sale proclamation in the light of the observations contained in this judgment.
15. There will be no order as to costs in this appeal.
P.B. Mukharji, J.
16. I agree.