1. These are two appeals which have been heard one after the other. First Miscellaneous Appeal No. 185 of 1944 is on behalf of the decree-holders and the other appeal, First Miscellaneous Appeal No. 214 of 1944, is on behalf of the judgment-debtor.
2. The following facts require to be stated. There was in the year 1907 a trust deed executed by Maharaja Surja Kanta Acharjya Chouwdhury of Mymensingh whereby the National Council of Education, Bengal, was appointed one of the beneficiaries and certain persons were appointed trustees.
3. On 21st June 1923, there was an indenture of lease between the trustees and late Rai Bahadur Dwarka Nath Chakravarty and his brother, Girish Chandra Chakravarty. The lease was a permanent lease, and it will be necessary to consider some of the terms of this lease in deciding the questions which have arisen in both these appeals. The lessees fell into arrears and the trustees instituted a suit on the Original Side of this Court, being Suit No. 2027 of 1932 on 30th August 1932, for the recovery of amounts due under the lease. The suit was decreed and thereafter there were execution proceedings in connection with this decree. The first execution proceeding was on 24th September 1937, and certain objections were taken Under Section 47, Civil P.C., by judgment-debtors 3 and 2. The objections were dismissed and there was an appeal to this Court. That appeal was dismissed on 4th May 1939. Then there was a sale of certain personal properties of the judgment-debtors in execution of the decree of this Court on 10th and 11th September 1939. Objection was raised to the sale and an application was made Under Section 47, and Order 21, Rule 90, Civil P.C. by judgment-debtor 1, Rai Bahadur Dwarka Nath Chakravarty. This was on 11th September 1939. The objections were dismissed by the executing Court and there was an appeal taken against that order of dismissal to this Court, being First Miscellaneous Appeal No. 131 of 1940. That appeal was not proceeded with by Rai Bahadur Dwarka Nath Chakravarty and was dismissed on 24th April 1944. Then there was an execution petition filed at Alipore on 1st May 1940, and objections were raised to the execution by Rai Bahadur Dwarka Nath Chakravarty by proceedings taken Under Section 47, Civil P.C. on 6-9 1940. There was a further objection taken on 15-7-1941, objecting that the execution proceedings could not proceed by reason of the provisions of Section 168A, Bengal Tenancy Act which had then come into force. These objections have been considered by C. C. Ganguly, Esqr., Subordinate Judge, First Court, Alipore and he has passed a judgment, the ordering portion of which is in the following terms:
That the application be allowed in part on contest, that as the lease in question has been determined neither by forfeiture nor by surrender, the decree-holders are bound in the first instance to proceed against the demised properties in view of the provisions of Clause 6 of the lease in question. Each party is to bear its own costs.
4. As regards the objections under Section 168A, Bengal Tenancy Act the learned Subordinate Judge held that that section did not apply inasmuch as the decree passed by the High Court, which was the decree being executed, was not a rent decree. Against the decision of the learned Subordinate Judge the decree-holders, as I have said before, filed First Miscellaneous Appeal No. 185 of 1944. The judgment-debtor has also filed a cross appeal being First Miscellaneous Appeal No. 214 of 1944. Mr. Gupta appears in support of Appeal No. 214 of 1944 and his argument mainly is that the decision of the learned Subordinate Judge should be supported on the ground which has been decided against him, namely, on the ground that Section 168A, Bengal Tenancy Act can be availed of by the judgment-debtor.
5. I shall deal first with Appeal No. 185 of 1944. The decision of the learned Subordinate Judge that the decree-holders are bound in the first instance to proceed against the demised properties in view of Clause 6 of the lease in question has been assailed by the decree holders on the ground that the decree-holders are entitled to proceed against any property of the judgment-debtor and are not restricted to proceeding against the demised properties in the first instance. Dr. Sen Gupta pointed out that this question is really concluded by the decisions of this Court in the two other execution cases, one of which was decided on contest in the presence. of both parties and one of which was decided against the judgment-debtor for non-prosecution. 'We have been taken through Clause 6 and in view of the decisions which have been given in regard to this matter in the two previous execution cases mentioned above, we are of opinion that Clause 6 cannot have the operation sought to be put upon it by the learned Subordinate Judge.
Furthermore, we are of opinion that the matter is concluded by the principles of res judicata. Mr. Gupta on behalf of the respondent in this appeal very fairly concedes that he has nothing to urge against the argument of Dr. Sen Gupta on this point and that he cannot maintain that by reason of Clause 6 the decree-holders were bound in the first instance to proceed against the demised properties.
6. I shall now deal with the argument of Mr. Gupta whereby he invokes the aid of Section 168A, Bengal Tenancy Act in his Appeal No. 214 of 1944 in support of the decision of the learned Subordinate Judge. The learned Subordinate Judge has found that Section 168A, Bengal Tenancy Act has no application as the decree passed by the High Court was not a rent decree. Mr. Gupta's argument is that the decree passed by this Court in Suit No. 2027 of 1932 is a decree for arrears of rent within the meaning of Section 168A, Bengal Tenancy Act, and he contends that if he succeeds in showing that, then by reason of the provisions of Section 168A, Bengal Tenancy Act the decree-holders cannot execute the decree except against the leasehold interest, unless the leasehold interest came to an end in any manner other than by surrender before the application was made for execution. The first question therefore for decision is whether the decree passed by this Court on the original side can be held to be a decree for arrears of rent. In my opinion having regard to the terms of the lease and to the claims made in the plaint it cannot be said that the decree passed by this Court was a decree for arrears of rent within the meaning of Section 168A, Bengal Tenancy Act. Rent is defined in Section 3 (13), Bengal Tenancy Act in the following terms:
'Rent' means whatever is lawfully payable or deliverable in money or kind by a tenant to his land.' lord on account of the use or occupation of the land held by the tenant.
Now, if one were to look at the lease which is the subject-matter of these proceedings one cannot but fail to notice the distinction which is made between what is payable as rent in the strict sense of the term and what is otherwise payable. The tenants were to pay a fixed annual rent to the Council at the rate of Rs. 10,000 per annum and Rs. 1,000 per annum to the Maharaja of Mymensingh. Then the lease provides that the lessees should pay all Government-revenues and rents payable to the superior landlords which were payable by their landlords. If default is made in paying rent the lessors would be entitled to get interest at 12 per cent, per annum. That is to be found in Clause 2(b) of the lease. So far as the other payments are concerned there is a distinction made. If default ismade in payment of Government revenue or in the payment of rents payable to the superior landlords and if the lessors paid these dues then the lessors would be entitled to be repaid with interest at the rate of 24 per cent, per annum. One can see here a clear distinction being made between rent pure and simple and sums payable on other accounts. The amount payable as rent is payable direct to the lessors. The other amounts are to be paid by the lessees either into the treasury or to the superior landlords. Having regard to these terms of the lease, I am of opinion that the amounts payable by the lessees for revenue and to the superior landlords or the lessors are not rent within the meaning of Section 168A, Bengal Tenancy Act. Mr. Gupta in arguing that these latter sums also amount to rent relied upon certain decisions of this Court which are as follows: Gour Gopal Sinha v. Gosta Behari 3 A.I.R. 1916 Cal. 410. It was held there that where a putnidar as part of the consideration for the use and occupation of the land undertook to pay the revenue payable by the zemindar direct in the Collectorate on account and to the credit of the landlord, the revenue so paid by the putnidar was part of the rent paid to the landlord. This case certainly supports the contention of Mr. Gupta. The next case is a Full Bench decision of this Court in Basanta Kumar Debya v. Ashutosh Chuckerbutty (1900) 27 Cal. 67 (F.B.). It was held there that a suit by a landlord against a tenant for a certain sum of money payable by him out of the rent to a third person under assignment, is one for rent and not for damages. The case is not exactly in point, but it may be taken to support in principle the view urged by Mr. Gupta. But I would point out that there the entire amount 'Was payable as rent and a portion of that rent was assigned to a third person. In the present case, there is a distinction made. A portion of the amount payable is treated as rent and a portion of the amount payable is treated otherwise. The next case relied upon by Mr. Gupta is the case in Jnanada Sundari v. Atul Chandra ('05) 32 Cal. 972. It was held there that where a lessee undertook to pay Government revenue of the lessor together with the rent payable to the lessor, the amount payable by the lessee for Government revenue although not payable to the landlord direct, came within the definition of Section 3, Bengal Tenancy Act. Had the law remained in this state a certain amount of difficulty would certainly be created in so far as the decree-holders are concerned, bat the point has been set at rest by the Judicial Committee in Jotindra Mohun v. Bibi Jarao Kumari ('06) 33 I.A. 30. There it was held expressly that where a putnidar agreed to pay in addition to his rent the Government revenue payable by his landlord, the amount payable as Government revenue by the putnidar was not rent payable to the landlord within the meaning of Putni Regulation VIII of 1819, Section 3, Clause 3, and was not recoverable as such. At p. 37, their Lordships expressed the following view:
Had the question turned entirely upon the kabuliyat of 1885, the matter would, in their Lordships' opinion, have been clear. The payment by the putnidar of the Government revenue is no doubt a part of the consideration to be rendered by her for the enjoyment of the tenure, but it is not money payable to the landlord. Nor is it provided in that document that it is to be dealt with in the same manner as rent, as is provided in the case of cesses. And what is most significant of all, a special mode of enforcing the obligation to pay Government revenue is provided, namely, the cancellation of the tenure in case of default; and that is the precise sanction which the law has forbidden by the terms of the Regulation in the case of rent.
It seems to me that the principles laid down in this passage completely govern the case which we are deciding. The amount payable as revenue and to the superior landlords of the lessors were not payable to the landlord. They were payable into the treasury and to the superior landlords. The treatment of these payments was different from the treatment regarding the payment of rent. As I have pointed out above, in default of rent being paid interest was charged at 12 per cent. In default of revenue and rent to the superior landlords being paid the lessors were entitled to charge 24 per cent, if they paid that amount to liquidate their liabilities to Government and to the superior landlords. Further, default in payment of revenue and rent to the superior landlords of one instalment rendered the lease liable to be forfeited whereas non-payment of rent would not render the lease liable to be forfeited unless three years' rent was not paid. Having regard to the decision of the Judicial Committee and to these provisions in the lease we are of opinion that the amounts payable by the lessees to the superior landlords and for Government revenue are not rent within the meaning of Section 168A, Bengal Tenancy Act.
7. The next point which we have to consider is the nature of the decree which has been passed by the High Court which is the subject-matter of these execution proceedings. Is it a decree for arrears of rent? In my opinion it is not. It is a composite decree. It includes payments of arrears of rent and also includes payment of other sums which, as I have pointed out above, do not constitute rent. Mr. Gupta argued that as the amount depreed for rent was not a negligible sum the whole decree should be considered to be a decree for arrears of rent. Roughly speaking, the decree was two-thirds for rent and one third for amounts which do not constitute rent. Mr. Gupta invoked the aid of the well-known legal principle 'de minimis non curat lex' and he applied the principle thus: He said that as the amount of rent decreed was not negligible it could not be ignored, and there fore the decree should be considered to be a decree for arrears of rent. The principle 'de minimis non curat lex' means that the law does not take notice of trivial matters. With great respect to Mr. Gupta, I think that he is misapplying this principle. If the amount payable on accounts other than for rent were trivial then the principle could be invoked and that portion of the decree as related to such amount could be ignored and the amount treated as 'de minimis'; but where a decree provides for the payment of a very large sum which does not constitute rent, I cannot see how that portion of the decree can be ignored. If that portion of the decree is not ignored then the decree cannot be held to be a decree for arrears of rent. We can say that a decree is a decree for arrears of rent, if it is purely for arrears of rent, or if the amount other than arrears of rent which has been decreed together with the rent is so small as to be liable to be ignored under the above mentioned principle. I would also point out that Section 168A should be strictly construed as it takes away valuable rights from the subject; it would not be right for us to enlarge the meaning of the phrase 'decree for arrears of rent,' in the way contended for by Mr. Gupta in a provision of this description.
8. I hold therefore that the decree passed is not a decree for arrears of rent and therefore Section 168A, Bengal Tenancy Act does not apply.
9. First Miscellaneous Appeal No. 214 of 1944 filed on behalf of the judgment-debtor must therefore be dismissed with costs the hearing fee being assessed at two gold mohurs. First Misc. Appeal No. 185 of 1944, filed on behalf of the decree-holders, is allowed with costs-the hearing fee being assessed at two gold mohurs. Let the costs of the paper book in Appeal No. 185 of 1914 be taxed.
10. I agree. The decree sought to be executed is I think clearly a composite decree and as such it cannot be regarded as a rent decree. That seems to have been the view of their Lordships in the Privy Council in Jitendra Nath Ghose v. Monmohan Ghose .