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Sudhir Krishna Ghose and anr. Vs. Satish Chandra Hui and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtKolkata
Decided On
Reported inAIR1944Cal418
AppellantSudhir Krishna Ghose and anr.
RespondentSatish Chandra Hui and ors.
Cases ReferredCivil P.C. In Rajendra Narayan v. SundariBibi
Excerpt:
- .....judge at midnapore for arrears of rent of a patni tenure. before this decree the interest of the decree-holder appellants was sold away at a revenue sale and the judgment-debtors interest in the patni was transferred to some other persons with the result that the decree passed in the rent suit had the effect of a money decree. on 21st june 1940, the appellants put this decree into execution in execution case no. 14 of 1940. in the application for execution, the appellants prayed for realisation of the decretal amount by attachment and sale of certain properties belonging to judgment-debtors 6 to 9 and 25 to 28. these were properties other than the tenure in arrears. the properties were attached on 21st december 1940. on 9th january 1941 the bengal tenancy amendment act of 1940 by which.....
Judgment:

Nasim All, J.

1. On 14th May 1940 the appellants obtained a decree against the respondents in rent Suit no. 2 of 1939 in the Court of the Subordinate Judge at Midnapore for arrears of rent of a patni tenure. Before this decree the interest of the decree-holder appellants was sold away at a revenue sale and the judgment-debtors interest in the patni was transferred to some other persons with the result that the decree passed in the rent suit had the effect of a money decree. On 21st June 1940, the appellants put this decree into execution in Execution Case No. 14 of 1940. In the application for execution, the appellants prayed for realisation of the decretal amount by attachment and sale of certain properties belonging to judgment-debtors 6 to 9 and 25 to 28. These were properties other than the tenure in arrears. The properties were attached on 21st December 1940. On 9th January 1941 the Bengal Tenancy Amendment Act of 1940 by which Section 168A was introduced into the Act came into force. On 16th January 1941 the judgment, debtors nos. 6 to 9 filed a petition objecting to the sale of the properties attached in view of the provisions of Section 168 A, Ben. Ten. Act. On 25th January 1941 the Subordinate Judge overruled these objections. On 3rd February 1941 the judgment, debtors 6 to 9 filed an appeal Satish Chandra v. Sudhir Krishna.Repoted in : AIR1942Cal429 , in this Court against the Order of the Subordinate Judge dated 25th January 1941. This appeal was allowed by this Court on 27th February 1942. The decree-holder has obtained leave of this Court to appeal to His Majesty in Council against the Order of this Court allowing the appeal. On 29th April 1942 the decree-holder filed another application of execution of the decree in rent suit No. 2 of 1939 against judgment-debtors 6 to 9 and 25 to 28. This execution case was registered as Execution Case no. 4 of 1942. In this execution case the decree-holder prayed for the realisation of the decretal amount by the appointment of a receiver under Section 51, Civil P.C, of certain properties of judgment-debtors 6 to 9 and 25 to 28. These properties do not inolude the tenure in arrears. On 30th May 1942 the judgment debtors 6 to 9 and 25 to 28 filed objections to this execution petition. The objection of the judgment.debtor so far as it is relevant for purposes of the present appeal is that in view of the provision of Section 168A, Ben. Ten. Act, the executing Court has no power under Section 51, Civil P.O., to appoint a receiver of the properties. This objection of the judgment-debtors has been allowed. Hence this appeal by the decree-holderSection Section 51, Civil P.C. runs as follows:

Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, Order execution of the decree: (a) by delivery of any property specifically decreed; (b) by attachment and sale or by sale without attachment of any property; (c) by arrest and detention in prison; (d) by appointing a receiver; or (e) in such other manner as the nature of the relief granted may require.

2. The material provisions of Section 168A, Ben. Ten. Act, are:

1(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 moveable or immoveable 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;

(b) the purchaser at a sale referred to in Clause (a) shall be liable to pay to the decree-holder or certificate-holder the deficiency, if any between the purchase price and the amount due under the decree or certificate 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.

3. In Bahadur Singh Singhi v. Sanyasi Charan Ghose : AIR1943Cal233 , Henderson J. has held that Section 168A, Ben. Ten. Act, does not prohibit or affect any mode of execution other than the attachment and sale of the judgment-debtor's property and does not therefore bar his arrest and detention. In Anil Kumar v. Beman Behari : AIR1944Cal240 , a Division Bench of this Court has held that Section 168A, Ben. Ten. Act, does not bar the execution of a rent decree by attachment under the provisions of Order 21, Rule 53, Civil P.C. of a decree passed in favour of the judgment-debtor. The reasons given in support of this decision are these:

(a) Section 168A is an encroachment upon the rights which the landlord decree-holder had under the ordinary law and it cannot be extended beyond what is warranted by the actual language of the section.

(b) In construing an Act the Court of law had got to ascertain the intentions of the legislature from what the latter has chosen to enaot either in express words or by reasonable implications.

(c) A judicial tribunal is bound to give effect to the clear language used in a statute even though it is of opinion that consequences are not such as could have been contemplated by the Legislature.

(d) There are no words in Section 168A which show that the only form of execution which is available to the decree-holder is to attach and sale the defaulting tenure and nothing else.

(e) A mere attachment without sale of the property is not prohibited by Section 168A.

4. The contention of Mr. Gupta appearing on behalf of the respondents is that although there are no express words in Section 168A which prohibit any mode of execution other than the attachment and sale of the judgment-debtor's property the reasonable implication of Section 168A (1) (b) is that the tenant judgment-debtor is not liable beyond the defaulting tenure. Section 168A (1) (b) assumes that the defaulting tenure is available to the decree-holder for the satisfaction of his decree and that the defaulting tenure has been sold and purchased in execution of the decree. Where the defaulting tenure is liable to be sold in execution of the decree and is actually sold the tenant has no further liability as the decree becomes satisfied and the question of further execution of the decree does not arise. Where, as in the present case, the defaulting tenure is not available to the decree-holder and cannot be sold in execution of the decree, Section 168A (1) (b) does not come into operation, the personal liability of the judgment-debtor under the decree continues and there is no reason why the decretal amount cannot be realised by modes of execution other than the attachment and sale of the judgment-debtor's properties. The next contention of Mr. Gupta is this: the proviso to Section 60, Civil P.C. mentions the properties which are not liable to attachment or sale and Section 168A (1) (a) also lays down the properties which are not liable to attachment or sale. Therefore the word 'and' coming between attachment and sale in Section 168A (1) (a) should be construed as 'or' as in the proviso to Section 60, Civil P.C. A receiver cannot be appointed of properties which are exempted from attachment or sale under the proviso to Section 60 of the Code. No receiver can therefore be appointed of properties of the judgment-debtor which cannot be attached or sold under Section 168A (1) (a). In Anil Kumar v. Beman Behari : AIR1944Cal240 , Mukherji J., said:

The words (attachment and sale) have been taken verbatim from Section 51, Clause (b), Civil P.C. and it seems to us that the latter part of the Clause was not reproduced in Section 168A, Ben. Ten, Act, probably because no question of sale of any property without attachment can possibly arise when a rent decree is being executed. We do not think that a mere attachment without sale of the property does at all come within the purview of Section 168A, Ben. Ten. Act.

5. Mr. Gupta in support of his contention that a receiver cannot be appointed of properties which are exempted from attachment or sale under Section 60, Civil P.C. relied on Lucus v. Harris (1887) 18 Q.B.D. 127, In that case the Court of appeal held that an Order appointing a receiver of the pension of an officer of Her Majesty's Forces was bad as by Section 141, Army Act, 1881, such pension was made inalienable by the voluntary act of the person entitled to it. 'Right to future maintenance' cannot be attached or sold in view of the provisions of Section 60 Sub-section 1 (n), Civil P.C. In Rajendra Narayan v. SundariBibi , their Lordships of the Judicial Committee said:

The right of maintenance ia in point of law not attachable and not saleable. They think that Section 60, Civil P.C. Sub-section (n), precludes an application for that purpose.

The proper remedy lies in a fit case in the appointment of a receiver for realising the rent and profits of the property paying out of the same sufficient and adequate sum for the maintenance of the judgment-debtor and his family and applying the balance, if any, to the liquidation of the judgment debtor's debt.

6. We are therefore of opinion that a receiver can be appointed of properties of the tenant judgment-debtor which are not liable to be attached or sold in execution of the rent decree. The last contention of Mr. Gupta was this: Section 168A prohibits the sale of the moveable property of the tenant judgment-debtor. The decree-holder in the present case asks for the appointment of a receiver of some khamar lands of the judgment-debtor. These khamar lands yield paddy. The receiver will have to sell this paddy which is the moveable property of the judgment-debtor. By getting a receiver appointed the decree-holder will therefore be entitled to do indirectly what he cannot do directly. Section 168A (1) (a) prohibits the attachment and sale of moveable property of the judgment-debtor in execution of a decree. It does not prohibit private sale of any moveable property which does not require previous attachment. For the reasons given above we are of opinion that Section 168A, Ben. Ten. Act, does not bar the execution of a rent decree by the appointment of a receiver of the judgment-debtor's property under Section 51 (d), Civil P.C. The result therefore is that this appeal is allowed. The Order of the Subordinate Judge is set aside. The Subordinate Judge is directed to proceed with the execution of the decree by the appointment of a receiver of the properties which are mentioned in the petition for exe cution. There would be no Order as to costs.

Mitter, J.

7. I agree.

Sharpe, J.

8. I agree.


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