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Mymensingh Loan Office Ltd. Vs. Basir Sheikh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1940Cal523
AppellantMymensingh Loan Office Ltd.
RespondentBasir Sheikh and ors.
Excerpt:
- .....were due and had not been paid. that being so, i do not see how the suits may be said to be suits in respect of arrears of rent. it may be that under the proviso to clause (a) of section 480 read with section 66, sub-section (2), ben. ten. act, the decree for ejectment passed in such a suit cannot be executed, if the defendant pays up the arrears with interest and costs into court within a specified period from the date of the decree. but in my opinion that does not make it a decree for rent : it remains a decree for ejectment all the same, though no doubt the defendant may avoid the ejectment, if he pays up the arrears. there is no obligation, but only an option to pay, and even such option arises not under the decree, but by virtue of some specific statutory provision. it is.....
Judgment:

Biswas, J.

1. In my opinion the judgment of the learned Subordinate Judge in these two appeals must be set aside. The appeals arise out of two suits for ejectment under Section 480, Ben. Ten. Act, and the only question is whether the suits were barred by Section 33, Bengal Agricultural Debtors Act, 1935. This Section lays down that except as provided in the Act, no Civil or Revenue Court shall entertain a suit, application or proceeding against a debtor in respect of any debt included in an application under Section 8 or in a statement under Sub-section (1) of Section 13, proceedings in connexion with which are pending before a Board. It appears that the defendants had made an application to a Debt Settlement Board in which they had included the arrears of rent for nonpayment of which the plaintiff brought these suits. There can be no question that these arrears constituted a 'debt' within the meaning of the Act, but the point is whether the suits could on that account be regarded as suits 'in respect of' such debt.

2. As already stated, the suits were brought under Section 480, Ben. Ten. Act, and were suits for ejectment simpliciter, in which there was no claim for arrears of rent. The cause of action was merely the failure of the under-raiyat to pay the arrears, and it is not disputed that the arrears were due and had not been paid. That being so, I do not see how the suits may be said to be suits in respect of arrears of rent. It may be that under the proviso to Clause (a) of Section 480 read with Section 66, Sub-section (2), Ben. Ten. Act, the decree for ejectment passed in such a suit cannot be executed, if the defendant pays up the arrears with interest and costs into Court within a specified period from the date of the decree. But in my opinion that does not make it a decree for rent : it remains a decree for ejectment all the same, though no doubt the defendant may avoid the ejectment, if he pays up the arrears. There is no obligation, but only an option to pay, and even such option arises not under the decree, but by virtue of some specific statutory provision. It is impossible to hold therefore because of these provisions, that such a suit is a suit for rent, or one 'in respect of' rent within the meaning of Section 33, Bengal Agricultural Debtors Act. In my opinion, the learned Munsif was correct in holding that the suits were maintainable. The result is that the appeals are allowed, the judgment and decrees of the learned Subordinate Judge are set aside, and those of the trial Court restored. The plaintiff will be entitled to his costs in all the Courts.


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