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Sm. Hiranmoyee Dassi and anr. Vs. on Death of Amiya Pal Choudhury His Legal Heirs - Anil Pal Choudhury and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberA.F.A.O. No. 80 of 1956
Judge
Reported inAIR1958Cal255,62CWN373
ActsTenancy Laws; ;Bengal Tenancy Act, 1885 - Section 168A and 168A(1); ;West Bengal Estates Acquisition Act, 1954 - Section 5 and 5B
AppellantSm. Hiranmoyee Dassi and anr.
RespondentOn Death of Amiya Pal Choudhury His Legal Heirs - Anil Pal Choudhury and ors.
Appellant AdvocateRabindranath Bhattacharjyya and ;Benoyendra Deb Rai Mahasai, Advs.
Respondent AdvocateNagendra Mohan Saha, Adv.
DispositionAppeal dismissed
Cases ReferredHiranmoyi Dasi v. Jyotish Chandra Pal Choudhury. A. F.A.O. No.
Excerpt:
- .....1954, for stay of proceedings, the execution proceedings were stayed under the provisions of the west bengal estates acquisition act, 1953. this stay order was vacated on the 25th june, 1955. in the meantime the west bengal estates acquisition act of 1953 had come into full operation with the result that the defaulting tenure vested in the state on the 15th april, 1955. thereafter the decree-holder made a prayer for being permitted to proceed against the movable properties of the judgment-debtors. this prayer was allowed, and the decree-holders were permitted to proceed against the movable properties of the appellants and other judgment-debtors.3. thereafter thren separate objections were filed by different sets of judgment-debtors--the tenor of which was practically the same, namely,.....
Judgment:

Renupada Mukherjee, J.

1. The only question of law raised in this appeal is whether Section 168A of the Bengal Tenancy Act is a bar to the execution of the rent decree which the decree-holders respondents have obtained against the appellants and some other persons, by attachment and sale of the movable properties of the appellants and not of the defaulting tenure.

2. The facts of the case are not disputed and they may be briefly stated thus. The respondents obtained a rent decree, on the 5th July, 1954 against the appellants and some other persons for a sum of Rs. 3,295-7-9 pies, inclusive of claim and costs. This decree was obtained on account of arrears of rent in respect of a tenure, which the appellants and their co-sharers held under the decree-holders respondents. The decree was put to execution on the 23rd August, 1954. Upon an application made by the judgment-debtors, on the 12th November, 1954, for stay of proceedings, the execution proceedings were stayed under the provisions of the West Bengal Estates Acquisition Act, 1953. This stay order was vacated on the 25th June, 1955. In the meantime the West Bengal Estates Acquisition Act of 1953 had come into full operation with the result that the defaulting tenure vested in the State on the 15th April, 1955. Thereafter the decree-holder made a prayer for being permitted to proceed against the movable properties of the judgment-debtors. This prayer was allowed, and the decree-holders were permitted to proceed against the movable properties of the appellants and other judgment-debtors.

3. Thereafter thren separate objections were filed by different sets of judgment-debtors--the tenor of which was practically the same, namely, that the term of the tenure held by the judgment-debtors had not expired, but the tenure had simply been converted into condensation money by reason of its vesting in the State, and so the decree-holders could realise their decretal dues only from out of the compensation money payable by the State and not by attachment and sale of other properties of the juddment-debtors. It was contended that Section 168A of the Bengal Tenancv Act would stand in the way of the decree-holders. All these objections were overruled by the two Courts below, and the two appellants of this appeal who had filed miscellaneous case No. 224 of 1955 in the executing Court have come up to this Court in Second Appeal.

4. Mr. Bhattacharjyya, appearing on behalf of the appellants, submitted that in view of some earlier decisions of this Court, which have not been reported as yet, he could no longer maintain the proposition that the term of a tenure does not expire, otherwise than by surrender, by reason of the vesting of the tenure in the State under the provisions of the West Bengal Estates Acquisition Act, 1953. We may refer only to one of such unreported cases, viz., the case of Ahidhar Ghose v. Sm. Nisubala Devi. A.F.O.O. No. 170 of 1956, D/- 19-11-1957: : AIR1958Cal253 . It has been held in that case that after a tenure vests in the State under the provisions of the West Bengal Estates Acquisition Act, the decree-holder is entitled to proceed against other properties of the ex-tenant, and the bar of Section 168A of the Bengal Tenancy Act would not apply to such a case. We respectfully agree with this decision.

5. Mr. Bhattacharjyya, however, raised a mew point in this Court on behalf of the appellants. His contention was that in order that a decree-holder might be entitled to proceed against other properties of the judgment-debtors in execution of a rent decree, the tenure or tenancy must expire before an application is made for execution of the decree as has been laid down in the proviso to Section 168A(1)(a) of the Bengal Tenancy Act. In order to appreciate if there is any substance in this contention of Mr. Bhuttacharjyya it is necessary to quote the whole of Sub-section (1)(a) of Section 168A with the proviso. It runs in the following 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 movable 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.'

6. In the present case the application for execution of the decree was filed on the 23rd August, 1954, and the tenure admittedly vested in the State on the 15th April, 1955. Mr. Bhuttacharjyya, therefore, contended that the term of the defaulting tenure must be taken to have expired after the filing of the execution and not before, and so the proviso to Section 168A(1)(a) of the Bengal Tenancy Act would not come to the assistance of the decree-holders respondents enabling them to proceed against the movable properties of the judgment-debtors. It would have been difficult for us not to have given effect to this argument of Mr. Bhuttacharjyya but for Section 5B of the West Bengal Estates Acquisition Act, which was inserted with retrospective effect on the 1st June 1954, by Section 3 of the West Bengal Estates Acquisition (Second Amendment) Act of 1954. The main part of Section 5B as introduced by the amending Act, with which we are concerned, runs as follows:'On and from the 1st day of June, 1954, no estate, tenure or under-tenure shall be liable to be sold under the Bengal Land Revenue Sales Act, 1859 (XI of 1859) or the Cooch Behar Revenue Sales Act, 1897 (Cooch Behar Act V of 1897) or the Bengal Palni Taluks Regulation 1819 (Ben. Regn. VIII of 1819) or the Bengal Tenancy Act, 1885 (VIII of 1885), as the case may be, and any sale which took place on or after that day under any of those Acts or that Regulation shall be deemed to have been void and of no effect.'

7. Let us now see what is the effect of this newly introduced Section 5B of the West Bengal Estates Acquisition Act upon Section 163A of the Bengal Tenancy Act. Now Section 168A of the Bengal Tenancy Act enables the decree-holder of a rent decree to realise his dues only by attachment and sale of the defaulting tenure unless the proviso allows him, under some special circumstances, to proceed against other properties of the judgment-debtor. The effect of Section 5B of the West Bengal Estates Acquisition Act is that the decree-holder is precluded from proceeding against the defaulting tenure. In our opinion, this disability put upon the decree-holder by S, 5B of the West Bengal Estates Acquisition Act virtually amounts to an implied repeal of Section 168A of the Bengal Tenancy Act. It cannot be argued for a moment that by the introduction of Section 5B in the West Bengal Estates Acquisition Act, the decree-holder is compelled to keep the execution of his decree in abeyance. In our opinion the principle of implied repeal of an earlier enactment laid down in the case of Kutner v. Phillips, (1891) 2 QB 267 (B), applies to the present case, because the provisions of the later enactment, viz., Section 5B of the West Bengal Estates Acquisition Act are so inconsistent with or repugnant to the provisions of Section 168A of the Bengal Tenancy Act that the two cannot stand together. They are plainly repugnant to each other and effect cannot be given to both at the same time. Section 168A of the Bengal Tenancy Act conferred a right upon the decree-holder of a rent decree to proceed ordinarily against the defaulting tenure by attachment and sale of that tenure. This very right was taken away by Section 5B of the West Bengali Estates Acquisition Act prohibiting the sale of the tenure. There was, therefore, an implied repeal of Section 168A of the Bengal Tenancy Act by Section 5B of the West Bengal Estates Acquisition Act. The principle of implied repeal laid down in the case of Kutner v. Phillips (B) has been accepted in a case of our High Court in the Full Beneh case of Emperor v. Provat Chandra Barua : AIR1927Cal432 . We, therefore, hold that after the introduction of Section 5B of the West Bengal Estates Acquisition Act, 1953 in the statute book, the bar of Section 168A of the Bengal Tenancy Act would no longer stand in the way of the decree-holders respondents in the present execution case and they would be entitled to execute the decree in the ordinary way as provided in the Code of Civil Procedure.

8. Mr. Bhuttacharjyya on behalf of the appellants referred us to an unreported decision of a Division Bench of this Court in which the contention which was put forth on behalf of the appellants of this appeal appears to have been upheld. That decision was given in the case of Hiranmoyi Dasi v. Jyotish Chandra Pal Choudhury. A. F.A.O. No. 54 of 1956, D/- 3-1-1959 (D). It does not, however, appear from that judgment whether the facts of that case attracted the operation of Section 5B of the West Bengal Estates Acquisition Act. We would not, therefore, be justified in applying that decision in the present case.

9. In view of what has been stated above, it would follow that the appeal must fail. This appeal is accordingly dismissed. Having regard to the circumstances of the case we direct that the parties will bear their own costs in this Court.

Banerjee, J.

10. I agree.


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