1. This is an appeal by the decree-holder under Clause 15, Letters Patent, against the judgment of Roxburgh J. affirming the orders made by the court below dismissing the appellant's application for execution as prayed for.
2. The facts are not in controversy and may be stated as follows: The respondents held a putni tenure under the appellant. The rent of the putni having fallen into arrears, the appellant landlord obtained a decree for arrears of rent on 17-7-1939. This decree was executed on 7-3-1941, the prayer in the execution petition being a sale of the tenure in arrears. Thereafter the proceedings in execution were stayed on receipt of a notice from the Debt Settlement Board, at the instance of the judgment-debtors. The order for stay made by the Board was ultimately vacated.
On 4-6-1946, the appellant made an application for amendment of the execution petition. In the amendment petition, the decree-holder stated that the tenure in arrear had been sold in an intermediate rent execution and that it was necessary to proceed with the execution by a sale of other properties of the judgment-debtors. The decree-holder accordingly prayed for proceeding with the execution proceedings initiated on 7-3-1941. On this application, the trial court by Order No. 8 dated 2-7-1946 directed that the execution petition be amended and the execution do proceed as prayed for. It was further directed that the notice under Order 21, Rule 22, Civil P.C. do issue on the judgment-debtors. On receipt of this notice some of the judgment-debtors filed an objection under Section 47, Civil P.C. on the ground that the execution proceedings as laid were not available to the landlord decree-holder in view of the provisions of Section 168 A, Bengal Tenancy Act.
3. Before I deal with the validity or otherwise of this objection I may refer to an intermediate execution which was initiated by the landlord decree-holder. It appears that for a period subsequent to that covered by the decree which is now under execution, rent of the putni again fell into arrears and the landlord obtained another decree for rent on the 11-6-1942. This decree was executed and the putni tenure in arrear was brought to sale on the 21-1-1946, and the sale was confirmed on the 25-2-1946.
4. The objection of the judgment-debtors under Section 168A, Bengal Tenancy Act, was sought to be got round by the decree-holder on the ground that as the tenure in arrears had already been sold and purchased by the landlord and as such had ceased to exist, there was no bar to the decree-holder proceeding with the execution in view of the proviso to Section 168A(1). This contention depends on the view one takes of the effect of the amendment petition which was made on 4-6-1946, and which was allowed by the Court on the 2-7-1946.
5. Section 168A, Bengal Tenancy Act, forbids execution of a decree for arrears of rent inter alia by a sale of the immoveable properties of the judgment-debtors other thaw the tenure in arrear. This rule is subject to an exception which is contained in the proviso to Section 168A(1). The proviso takes away the disability imposed by Section 168A(1) in cases where the term of the tenancy expires before an application is made for the execution of the decree. It is now well settled that this expiry may take place after the filing of an initial application for execution of the decree for rent. It is sufficient that the expiry takes place before the initiation of the execution proceedings in which the decree-holder wants to sell other properties of the judgment-debtor, (See the case of --'Sree Iswar Radha Ballav Jew Thakur v. Mahima Ranjan', 49 Cal WN 629.)
The question therefore is whether the sale of the tenure in arrear in the present case took place before an application for execution of the decree in which the landlord prayed for realisation of his decree for rent by a sale of other property. This depends on the view one takes of the effect of the amendment petition filed on 4-6-1946 and the order made thereon. I have already set out the terms of the amendment petition and the order made thereon.
Mr. Chatterji appearing for the appellant has strongly contended that the effect of the order was in substance to initiate new proceedings for execution of the decree on the date of the order amending the execution petition. Reliance is placed on the fact that in the original execution which was started in 1941 the decree-holder prayed for a sale of the tenure in arrear with the consequences which may attach thereto under Ch. XIV of the Bengal Tenancy Act. The amendment petition sought to change the mode of execution by praying for a relief not against the tenure in arrear but against other properties of the judgment-debtors. Reliance is also placed upon the fact that the Court directed the issue of a notice under Order 21, Civil P.C. In my opinion, the effect of the amendment petition and the order made thereon did not initiate a new proceeding in execution on the date of the making of the order but it merely carried on the old execution which was started in 1941. The prayer for sale which was contained on the original application for execution remained, the difference being that as the tenure had been sold and was no longer available for further execution, the landlord decree-holder wanted to sell other properties of the judgment-debtors.
6. Reference was made by Mr. Chatterji to the case of --'Badri Narayan v. Baidya Nath Pal', 60 Cal LJ 123. In that case the decree-holder had prayed for sale of certain properties. Those properties were sold and thereafter the decree-holder wanted to put in a further list of properties. This list was filed after the decree had become 12 years old. A question then arose whether Section 48 barred the further proceedings in execution by a sale of the added properties. The decree-holder suggested that the filing of the list thereby continued the old execution but Mukerji J. who delivered the judgment of the Bench pointed out that all the reliefs which the decree-holder had prayed for in the earlier execution had been granted by the Court and the execution as prayed for had been fully satisfied, the prayer made by the filing of a fresh list of properties was a new prayer which could not have been given on the original petition and in that view it was held that this must be regarded as a new execution.
This case was considered by a Bench decision of this Court in the case of --'Shekenderali v. Abdul Rashid', 45 Cal WN 903 and was distinguished on the ground that the first execution had been fully satisfied and the filing of the last could not operate to review an execution which was fully satisfied. In the later decision this Court held that it was competent for the executing court in its discretion to amend the original application for execution by the addition of new properties.
The mere fact that some new properties were substituted for some other properties mentioned in the application for execution did not mean that a fresh execution starts on the date the decree-holder puts in a list of fresh properties.
7. In Badrinarayan's case cited above, the execution started by the decree-holder had worked itself out; unlike the present case, when the execution prayed for was not worked out the prayer for sale of the tenure had become unavailable as a result of some other proceeding in execution of another decree.
8. Mr. Chatterji also referred us to a decision of the Privy Council in the case of --'Maharaj Bahadur Singh v. A. H. Forbes', 33 Cal WN 977 (P.C.) . In that case the decree-holder had prayed for a sale of the tenancy in arrear. Thereafter, in view of certain judicial decisions the decree-holder made an application for execution stating that the decree might be regarded as a money decree and the same may be executed by a sale of certain properties. It was pointed out that this last execution could not be regarded as a continuation of the earlier one, the reason given being that the decree-holder had abandoned the prayers contained in the earlier execution proceedings and the last execution was a substantial departure from the earlier one and cannot be regarded as a continuation of the earlier execution proceeding. In my opinion, this case does not assist the appellant in his contention.
9. In the present case, the decree-holder himself prayed for amendment of the execution petition. He expressly stated that the amendment petition be regarded as a part of the execution petition. The relief by way of a sale which was already contained in the original application for execution had not been granted in the execution case and as the properties in respect of which the relief was prayed for became unavailable the same relief by sale could be sought for against certain new properties. In my opinion, the view taken by Roxburgh J. that this cannot be regarded as a new application for execution is correct. In this view, the decree-holder's application was rightly held to be barred under Section 168A, Bengal Tenancy Act.
10. This appeal accordingly fails and is dismissed with costs.
11. I agree.