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Phani Bhusan Mukherjee Vs. Purna Chandra Bagchi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Tenancy
CourtKolkata
Decided On
Reported inAIR1944Cal199
AppellantPhani Bhusan Mukherjee
RespondentPurna Chandra Bagchi and ors.
Cases ReferredJotish Chandra Ghosh v. Bireswar Haldar
Excerpt:
- .....by mr. sen.19. on the other hand, its delimitation will lead to unreasonable consequences. a decreeholder purchaser purchases the property in open competition with the stranger bidders. now, that there is this liability of the purchaser imposed by clause (b) of section 168a (1), ben. ten. act, the bid given by a stranger bidder may be presumed to be the price of the holding minus the sum referred to in clause (b) above. if a decree-holder purchaser have not to face the liability dealt with in clause (b) he will always be in a position to outbid a stranger bidder and yet purchase the property at an inadequate price to the detriment of the outgoing tenant. i do not see any reason why the section should be construed thus to place the decree-holder in a position to compete at the.....
Judgment:

B.K. Mukherjea, J.

1. The facts giving rise to this appeal may be shortly stated as follows. The appellant obtained a decree for rent against the respondents in respect of a darputni held by the latter under him in Bent Suit No. 5 of 1938 of the Court of the Subordinate Judge at Burdwan. The decree was put into execution in Rent Execution case no. 157 of 1940 of that Court and the entire tenure in arrears was put up to sale on 4th June 1941 and purchased by the decree holder himself for a sum which just covered the decretal dues and costs. The result was that the decree was satisfied in full by the sale of the darputni tenure. On 7th July 1941 which was the date fixed by the Court for confirmation of the sale, the purchaser presented an application to the Court stating that as he was himself the decree-holder, it was not necessary for him to deposit the arrears of rent a payable in respect of the tenure between the date of the institution of the suit and that of the confirmation of the sale as required by Sub-section (3) of Section 168A, Bengal Tenancy Act, and that the sale might be confirmed without any such deposit. It was stated in the said application that the decree-holder had already in-stituted a suit against the judgment-debtors claiming rents for the subsequent period. The application was resisted by the judgment-debtors who contended inter alia that the decree-holder purchaser should either make a deposit as is required by Sub-section (3) of Section 168A, Ben. Ten. Act, or he should put in an application certifying payment of the arrears of rent for the period mentioned above.

2. The trial Court accepted the contention of the decree-holder and held that Sub-section (1), Clause(b) as well as Sub-section (3) of Section 168A, Ben. Ten. Act, were applicable only when the auction purchaser of the tenure or holding was a third party and not the decree-holder himself, and consequently the decree-holder purchaser was not required to make a deposit prior to the sale being confirmed.

3. On appeal, the judgment was reversed by the District Judge, Burdwan and it was held by the learned District Judge that regard being had to the plain language of the provisions, it could not be said that the word 'purchaser' in Clause(b) of Sub-section (1) as well as in Sub-section (3) of Section 168A, Ben. Ten. Act, was restricted to a third party purchaser only. It is the propriety of this view that is being challenged before us in this appeal.

4. Now, the provisions of Clause(b) of Sub-section (1) of Section 168A, Ben. Ten. Act, are perfectly general. It lays down that when a tenure or holding is sold in execution of a rent decree, the purchaser shall be liable to pay to the decree, holder the deficiency, if any, between the purchase price and the amount due under the decree together with the costs of bringing the tenure or holding to sale and the rent accrued since the institution of the suit and up to the date of the confirmation of the sale. The word 'purchaser' occurs in several places in chapter 14, Ben. Ten. Act, and it is nowhere used in the restricted sense of meaning a third party purchaser only and excluding the decree-holder purchaser. It is true, as Mr. Sen points out, that in Clause(b) of Sub-section (1) of Section 168A, Ben. Ten. Act, the liability has been imposed upon the purchaser to make certain payments to the decree-holder, and ordinarily when the obligor and the obliges are one and the same person, the obligation is deemed to be extinguished. But here the purchaser is compelled to discharge an obligation which would otherwise e' lie on the tenant judgment-debtor. Section 169, Ben. Ten. Act, lays down the rules relating to the distribution of sale proceeds when a tenure or holding is sold under chap, 14, Ben. Ten. Act. The costs of bringing the tenure or holding to sale have got to be paid first next the decretal dues are to be satisfied; and after this the decree-holder is entitled to be paid out of the surplus sale proceeds, if any, the rent which might have become due in respect of the tenure or holding between the date of the institution of the suit and the date of the confirmation of the sale. This is altered by Section 168A (1) (b), Ben. Ten. Act, and items 1 and 3 referred to above which were payable out of the sale proceeds, that is to say, the judgment-debtor's money, have now to be paid by the auction purchaser.

5. I cannot say that the object of the Legislature in enacting Clause(b) of Sub-section (1) of Section 168A, Ben. Ten. Act, was merely to benefit the decree-holder. It was, in my opinion, for the benefit of the judgment-debtor as well. It seems to me that the intention of the Legislature was, in the first place, to exonerate the tenant from all further liabilities when the entire tenure or holding was sold in execution of a rent decree. But as in that case, the decree-holder might suffer loss when the sale proceeds of the tenure or holding did not cover the entire decretal dues and the rent that accrued subsequent to the date of the suit, the liability for this payment was thrown upon the purchaser who could not otherwise be made liable for any claim that accrued prior to the date of his purchase.

6. It may have been in the mind of the Legislature that when a tenure or holding is sold in execution of a rent decree, it should at least fetch a price that will cover the decretal dues and the subsequent rents due to the landlord prior to the date of the confirmation of the sale. If the sale proceeds are insufficient to meet these demands, it is for the purchaser to make good this deficiency. I cannot hold that the Legislature intended to apply this Rule only when the purchaser was a third party purchaser and not the decree-holder himself.

7. It may be that the wording of the section is not very happy and an argument may be founded on the fact that Clause(b) of Sub-section (1) of Section 168A, Ben. Ten. Act, while it imposes certain liabilities upon the purchaser has not expressly taken away the liability of the judgment-debtor in respect of the same. The language is undoubtedly not clear, but the dominant intention underlying the section seems to be to absolve the judgment.debtor from any further liability when the entire tenure or holding is put up to sale.

8. Assuming, however, for argument's sake that Mr. Sen's contention is right, and although the purchaser has been made liable to pay certain claims, as the obligation of the judgment-debtor has not been expressly taken away in respect of the same that liability still remains. Even then I think that Sub-section (3) of Section 168A would provide an adequate protection to the judgment-debtor. Under that Sub-section, the Court is not competent to confirm the sale unless the purchaser deposits the amount specified in Section 168A (1), Clause(b), Ben. Ten. Act. Even if both the auction purchaser and the judgment-debtor are liable to meet these demands which are specified in the Clause, as the amounts are compulsorily payable by the purchaser if he wants to have the sale confirmed, the moment the deposit is made, the liability of the judgment-debtor would be at an end. I think, therefore, that having regard to the clear language of ,s. 168A, Ben. Ten. Act, it is not possible to say that the word 'purchaser' occurring in Clause(b) of Sub-section (1) and in Sub-section (8) excludes the decree-holder purchaser.

9. It is next argued that it is unthinkable that the Legislature would provide for deposit by the decree-holder purchaser when he himself Jias got to withdraw the deposit soon after it is made. I may say that there is nothing per se unreasonable in requiring the decree-holder to make a deposit as is contemplated by Sub-section (3). Under the law as it stood prior to the introduction of Section 168A in the Ben. Ten. Act, when the landlord decree-holder himself purchased the tenure or holding at a rent sale, he might have to pay the entire amount of purchase money into Court, although he would be entitled to be paid out of it not only the decretal dues and the costs of execution, but the subsequent rents that accrued due after the date of the suit. I think, however, that a cash deposit is not always necessary in Sub-section (3) of Section 168A, Ben. Ten. Act. Under Clause(b) of Sub-section (1), the purchaser has got to pay amongst others the rent which may have become payable to the purchaser between the (late of the institution of the suit and the date of the confirmation of the sale. If the decree-holder who is himself the purchaser certifies to the Court that nothing is due or payable to him on that account, the Court can certainly record that acknowledgment and confirm the sale without requiring any cash deposit. A similar view, it seems, was taken by this Court in Jotish Chandra Ghosh v. Bireswar Haldar 39 C.W.N. 829 which was a case under Order 21, E. 89, Civil P.C. and where also the deposit is directed to be made in Court.

10. In the case before us, it appears that the decree-holder has got a decree already for rents for the period subsequent to the date of the suit up to the end of chait 1347 B.S. which corresponds to the middle of April 1941. The application for confirmation of sale was made later in August 1941. We do not know what is the exact amount due under the decree. It would certainly be open to the decree-holder if he so chooses to certify in accordance with the provisions of law that the decree obtained by him has been satisfied to the extent of the amount that is necessary for him to deposit under Sub-section (3) of Section 168A, Ben. Ten. Act, and the Court on being satisfied that this has been duly and properly done can confirm the sale without requiring any cash deposit. The result, therefore, is that this appeal fails and is dismissed. There will be no Order as to costs in this Court. No Order is necessary on application under Section 115, Civil P.C.

Pal, J.

11. I agree. The questions raised in this appeal are: (1) Whether the word 'purchaser' as used in Section 168A (1) (b), Ben. Ten. Act, includes the decree-holder auction purchaser; (2) if so, whether Sub-section (3) of Section. 168A makes it imperative even for such a purchaser to deposit the sum referred to there.

12. Section 168A (1) (b) runs thus:

the purchaser at a sale referred to in Clause (a) shall be liable to pay to the deoree-hblder ... the deficiency, if any, between the purchase prioe and the amount due under the decree ... together with the costs incurred in bringing the tenure or holding to sale and any rent which may have become payable to the decree-holder between the date of the institution of the suit and the date of the confirmation of the sale.

13. Section 168A (3) says:

A sale referred to in Clause (a) of Sub-section (1) shall not be confirmed until the purchaser has deposited with the Court ... the sum referred to in Clause (b) of that sub-seotion.

14. The sale referred to in Clause (a) of Sub-section (1) is the sale of the entire tenure or holding in execution of a decree for arrears of rent due in respect of the tenure or holding, whether such decree has the effect of a rent decree or money decree. The sale in question may thus be either one held under chap. 14, Ben. Ten. Act or one held under the provisions of the Code of Civil Procedure. There is no dispute that in either case a decree-holder himself may possibly bid for or purchase the tenure or holding at the sale. Section 173 (1), Ben. Ten. Act, entitles him to do so without permission when the property is sold under chap. 14 of the Act. Rule 72 (1) of Order 21, Civil P.C. only requires him to take permission of the Court.

15. The word 'purchaser' thus prima facie includes a decree-holder purchaser also. The word is used in Rules 71, 84, 85, 86, 89, 91, 93, 94, 97 and 100 of Order 21, Civil P.C. and in Sections 159, 104(2), 165(2), 166(2), 167 (1), 174 (1) (b), and 174A(3), Ben. Ten. Act. Except the right of set-off given to a decree-holder purchaser by Rule 72(2) of Order21, Civil P.C. a decree-holder purchaser as such stands on the same footing as any other purchaser and the word 'purchaser' is used everywhere to include a decree-holder purchaser. I do not see why the word should be taken to have been used in any narrower sense in Section 168A (1) (b) of the same Act. In its ordinary meaning it includes every person purchasing the property irrespective of the question whether he is or is not a party to the proceeding in any other capacity, and in this sense the word has always been used by the Legislature in all the relevant provisions referred to above.

16. Mr. Sen, appearing for the appellant, contends that as the section speaks of liability of the purchaser to pay to the decree-holder, the purchaser and the decree-holder must be taken to refer to two distinct persons, and consequently the word 'purchaser' as used in this section must be taken to mean a purchaser other than the decree-holder.

17. Concepts which at first appear very clear and definite so as to make us forget all possible difficulties in employing them may turn out to be quite vague when used in a particular context. We may feel compelled to delimitate a concept more closely in such a case.

18. It is certainly a well-established Rule of grammar that the meaning of words depends largely, if not wholly, upon their collocation. But the collocation of the words 'purchaser' and 'decree-holder' here in relation to the liability dealt with in the Sub-section does not, in my opinion, limit the ordinary meaning of the word 'purchaser.' Had it only been a question of creating a new liability and imposing on the purchaser this new liability to pay to the decree-holder then the decree-holder himself as purchaser might not have come within the term 'purchaser,' not because he was not a 'purchaser' but because the Clause, according to the assumption made, would only have related to a liability to pay to the decree-holder and a liability of a person to himself does not exist. But the Legislature here is really dealing with an already existing liability of the outgoing tenant and imposing this liability on the purchaser. As I read this Clause (b) with Sub-section (3) of Section 168A, the liability is intended to be shifted on from the outgoing tenant to the purchaser, the outgoing tenant being discharged of the liability altogether. Clause (b) as expressed, might not have produced that effect standing by itself. This Clause standing alone might have been construed as having only made the purchaser severally liable for the same thing for which the outgoing-tenant is already liable. Perhaps that is why Sub-section (3) was enacted so that the liability might be fully discharged by payment. When the statute is thus dealing with an otherwise existing liability of one person to pay to the decree-holder and is imposing this liability on the purchaser with a view to discharge the liability of that other person, the principle that a liability cannot exist on a claim at the same time by and against a person himself would not affect the construction of the word 'purchaser.' There is nothing wrong or absurd in shifting an existing obligation on to the obligee himself or even in imposing a several liability on the obligee himself on the happening of a certain contingency, though the legal effect of this may be the extinction or discharge of the obligation itself. The meaning of the word 'purchaser' is otherwise clear and unequivocal and the word is ordinarily capable of only one meaning, namely, one who purchases. No absurdity or mischief follows from taking the word in its ordinary meaning. I do not therefore feel compelled to delimitate the concept in the manner suggested by Mr. Sen.

19. On the other hand, its delimitation will lead to unreasonable consequences. A decreeholder purchaser purchases the property in open competition with the stranger bidders. Now, that there is this liability of the purchaser imposed by Clause (b) of Section 168A (1), Ben. Ten. Act, the bid given by a stranger bidder may be presumed to be the price of the holding minus the sum referred to in Clause (b) above. If a decree-holder purchaser have not to face the liability dealt with in Clause (b) he will always be in a position to outbid a stranger bidder and yet purchase the property at an inadequate price to the detriment of the outgoing tenant. I do not see any reason why the section should be construed thus to place the decree-holder in a position to compete at the bidding unfairly with the stranger bidders to the detriment of the judgment-debtor tenant. The ratio of the new provision is rather some special protection of this judgment-debtor tenant.

20. Further Clause (b) of Section 168A (1) read with Section 309 of the Act seems to set a minimum limit to the price of the holding or the tenure. The effect of Clause (b) of Section 168A (1) will be that the price to be paid by the purchaser for the holding or the tenure must cover up at least the items specified in cls. (a) (b) and (c) of Section 169 (1), Ben. Ten. Act. In the result, when the entire tenure or holding is thus sold in execution the outgoing tenant is to be relieved of the liability in respect of these items. It is clear that at least in case of a stranger purchaser this is the intention of the Legislature. No reason could be suggested why this relief should be denied to the judgment-debtor when the decree-holder happens to be the purchaser.

21. It is not disputed that subject to the setoff allowed by Rule 72 (2) of Order 21, Civil P.C. a decree-holder purchaser, like all other purchasers, is bound to deposit the purchase money under Rules 84 and 85 of Order 21, Civil P.C. though under the rules for disposal of the sale proceeds given in Sections 169 (1) and 148A (8) (i), Ben. Ten. Act, the decree-holder purchaser himself may be entitled to a portion of the amount deposited. Rule 72 (2) of Order 21, Civil P.C. allows set-off only in respect of the amount due on the decree. The amount of costs incurred in bringing the tenure or holding to sale and the amount of rent which may have become payable to the decree-holder between the date of the institution of the suit and the date of the confirmation of the sale, though payable to the decree-holder purchaser himself under cls. (a);uid (c) of Section 169 (1), Ben. Ten. Act, will not bo set-off against the purchase money to be deposited.

22. Remembering this, I do not see why the word 'purchaser' in Sub-section (3) of Section 168A, Ben. Ten. Act, should not also be taken in its ordinary sense to include the decree-holder purchaser as well. Sub-section (3) requires that 'the sum referred to in Clause (b) of Sub-section (1)' must be deposited with the Court. The rfiim referred to in Clause (b) comprises three different items, namely (1) the deficiency, if any, between the purchase price and the amount due under the decree; (2) the costs incurred in bringing the tenure or holding to sale; (3) any rent which may have become payable to the decree-holder between the date of tho institution of the suit and the date of the confirmation of the sale. In naming these items the Legislature obviously kept in view tho items in cls. (a) (b) and (c) of Section 169;(l), Ben. Ten. Act, and perhaps lost sight of the caso contemplated by Section 148A (8) (i) (c) of the Act.

23. Under Section 169 the amount under item 3 named above was open to be determined by the executing Court: vide Sub-section (2) of Section 169, Ben. Ten. Act. Though Section 168A does not contain any provision corresponding to Sub-section (2) of Section 169, it is reasonable to hold that the Court holding the sale shall have power to determine the amount payable under this head. As the purchaser is now interested in its determination, he being made liable to pay the amount, the determination may be at his instance.

24. Clause (b) of Section 168A (1) speaks of 'any rent which may have become payable to the decree-holder . . .' When the decree-holder himself is the purchaser, it may be that as no one can be debtor to himself, nothing remains payable to the decree-holder by the purchaser in such a case on this count and, if the decree-holder purchaser so requires, the Court may determine that nothing is payable to him on this count. On such a determination the decree.holder purchaser may not have to deposit anything on this count because nothing is payable therefor.

25. Neither party urged before us that by reason of the decree-holder himself being the purchaser and thus being made liable by Clause (b) of Section 168A (1) to himself to pay the sum, the obligation itself is discharged by the operation of any principle of law consequently when the decree.holder himself becomes the purchaser nothing remains payable in respect of the above items and therefore nothing need be deposited by him under Sub-section (8). We do not pronounce any opinion on this. It, however, seems obvious that if this be the contention of the decree-holder purchaser, the judgment-debtor will have no possible objection to it. He is discharged of the liability all the same and that is all that he is concerned with.


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