1. This is an appeal against a decree of the District Judge of Howrah allowing an appeal against an Order passed in proceedings under S.47, Civil P.C. by the Subordinate Judge of the First Court, Howrah, dismissing the objection of judgment-debtors 3 and 4 before him made under the provisions of S.168A, Ben. Ten. Act, to the effect that the landlord decree-holder could not proceed by attachment and sale against any property other than the tenure in arrear. The decree sought to be executed was a decree in respect of arrears of rent due on a patni tenure, passed in January 1938. The decree-holder realised in 1938 a portion of his dues by sale of the defaulting tenure, and was himself the auction purchaser. He has applied in 1941 for execution in respect of the balance of his dues by attachment and sale of other properties of the judgment-debtors, who claim that Section 168A, Ben. Ten. Act, which came into force in January 1941, is a bar to the proceedings. On behalf of the landlord appellant it is contended that as the tenure ceased to exist by merger as a result of his own purchase in the earlier execution proceedings the case falls within the terms of the proviso to Sub-section (1) (a) of Section 168A. The proviso runs as follows:
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 tenanoy expires before an application is made for the execution of such a decree or certificate.
2. Mr. Hemendra Chandra Sen who appears on behalf of the appellant concedes that the present case is on all fours with the case in Atul Chandra v. Upendra Narayan : AIR1942Cal478 decided by a Bench to which my learned brother Blank was a party; it was there held (1) that 'merger' was one of the methods by which the term of a tenancy might expire within the meaning of the proviso, and (2) that the words 'before an application is made for execution of such a decree' as used in Section 168A (1) (a) proviso refer to the first or initial application for execution and not to the subsequent proceeding which is started by the landlord after the defaulting tenure is purchased by him in execution of the same decree. Mr. Sen while conceding that the decision defeats the appeal has however pressed us to reconsider the terms of the proviso the interpretation of which is indeed a matter of some difficulty. So far as the first point decided in the case cited is concerned, a similar decision had been reached just previously in Satish Chandra Hui v. Sudhir Krishna Ghose : AIR1942Cal429 and I do not consider it necessary to refer further to it. I propose to examine the second point.
3. In the first place it is to be noted that in the case cited the word 'expires' in the proviso has been interpreted as if it stood for 'has expired whether before or after the commencement of the Bengal Tenancy (Amendment) Act, 1940.' A retrospective effect has been given to the proviso itself and to the fact of expiry, which seems hardly justified by the word used. It is true that the section is clearly intended to apply to pending execution proceedings and has some retrospective effect, but it would not follow from this that the proviso itself included the case of an expiry, of term taking place before the commencement of the amending Act. On the other hand, the interpretation given to the phrase 'before an application is made for execution of such a decree,' though disposing of an apparent unfairness as regards some purchase in execution prior to the Act, may have the opposite effect in regard to purchases made after it.
4. We may consider four types of cases of purchase of a tenancy in execution of a rent decree for its own arrears of rent viz. (1) purchases made after the amending Act of 1940 where the landlord is the auction purchaser (2) similar purchases where there is a stranger auction purchaser (3) purchases made before the Act where the landlord is the auction purchaser, and (4) similar purchases where a stranger is the auction purchaser.
5. In the case of purchases made after the amending Act the scheme of Section 168A is such that in form the decree is satisfied wholly as a result of the purchase. If a stranger purchases then whatever his bid, he has, under the terms of Sub-section (1) (b), to make up the deficit, if any, by a sufficient sum to meet the whole decree, costs, and arrears to date of confirmation of the sale. If the landlord purchases the satisfaction is complete in form, though illusory, as the landlord has merely the pleasure of paying himself any real deficit which exists between the proper value of the property which we may assume to be represented by his bid and the total dues including arrears. (That the term 'purchaser' in subsection (1) (a) includes a decree-holder auction purchaser has been held in a case recently decided by Mukherjea and Pal JJ. namely (S. M. A. No. 29 of 1942 Phani Bhusan Mukherjee v. Puma Chandra Bagehi Reported in : AIR1944Cal199 dated 4th June 1943) a decision with which I respectfully agree.) In either case no question of further execution by attachment and sale of property of the judgment-debtor in respect of the particular decree can arise, the decree having been satisfied. No problem arising out of a difference between the two cases as a result of the fact of merger in the case of the landlord's purchase can arise.
6. In the case of purchases made before the amending Act, since Sub-section 1 (b) was not in force at that time, then, if the bid of either a landlord auction purchaser, or of a stranger auction purchaser was not sufficient to meet the decree, there was a balance due which the landlord might realise. If the landlord was the purchaser there was a merger, and the tenancy ceased to exist. If the word 'expires' e in the proviso to Sub-section (1) (a) is interpreted as including a meaning 'has expired before the commencement of the Bengal Tenancy Amendment Act, 1940' then the landlord will be able to take out execution by attachment and sale of other property of the judgment-debtor after the introduction of the amendment, unless the phrase 'before an application is made for execution of such decree' is given the meaning 'before the first or initial application is (or has been before the commencement of the Bengal Tenancy Amendment Act) made for execution of the decree.' Unless the latter interpretation is also given there will be hard-ship or apparent unfairness in distinguishing the effects in the case where the landlord was the purchaser from that where he was not. If the word 'expires' is not given the wider interpretation, there will be no difference between the two cases.
7. In passing it may be noted here that in 46 C.W.N. 6841 cited above it is suggested that a case of hardship may arise when the purehaser (under the old Act) was a stranger, as the landlord would lose the benefit of Sub-section 1 (b). With respect, it may be pointed out that if Sub-section 1 (b) had been in force at the time of the previous purchase, and the property was not worth more than the bid, the stranger would probably not have bought the property at all, the landlord would have been forced himself to purchase and there would have been no benefit to obtain under the Sub-section. At best the hardship is of a somewhat theoretical character.
8. I foresee some difficulty and unfairness arising in the future if the interpretation given in Atul Chandra v. Upendra Narayan : AIR1942Cal478 to the phrase 'before an application is made for execution of such a decree' is adopted. A permanent tenancy may 'expire' owing to the operation of various other factors besides merger, e. g., by annulment of a patni under the Revenue Sale Law, or of a holding under Section 167, Ben. Ten. Act. A tenancy for a term will expire at the end of its period. Suppose the first or initial application made after the Act for execution of a decree is dismissed for default and the tenancy, expires in one of these ways, is there any reason why a second application for execution in respect of other property should not be hade? Or suppose such a tenancy expires during the first execution proceeding, rendering it in fructuous, there seems to be no reason why the landlord should be worse off than if he had happened to wait long enough for the prior extinction of the tenancy to take place. The ordinary meaning of the phrase 'before an application is made for execution of such a decree' is scarcely stretched if we take it as referring to the particular application which is otherwise barred under Sub-section 1 (a), but for the operation of the proviso. As noted above, the question of merger as a result of a sale in execution of the decree for rent can give rise to no trouble so far as sales after the Act are concerned. We may add that, by the operation of Sub-section (3), executions started prior to the Act against property other than the tenancy in default will be forced into a similar position. With great respect therefore I think that the proper I interpretation to be given to the phrase in question is that 'expires' refers to expiry after the commencement of the amending Act of 1940, and that 'an application' refers to the particular application which is otherwise barred under Sub-section 1 (a), but for the operation of the proviso. The proviso as a whole is to be taken as permitting the landlord to proceed against other property of the judgment-debtor if he can show that the tenancy has expired after the commencement of the;amending Act and before the application made to proceed against such property. The result, so far as this appeal is concerned, is the same whether this interpretation is followed or that in Atul Chandra v. Upendra Narayan : AIR1942Cal478 .
9. I am aware that by following the above interpretation with regard to the word 'expires,' we only remove one type of difficulty by creating another. The interpretation solves the present case, giving the same answer as in Atul Chandra v. Upendra Narayan : AIR1942Cal478 but it leaves a case of hardship where a tenancy has expired in one or other of the ways suggested above before the new amendment came into force, and if the landlord is unable to use any other means of execution besides attachment and sale of property of the judgment-debtor, other than the tenancy in default. The result is that this appeal is dismissed. There will be no Order as to costs.
10. I have had the advantage of perusing the draft of the judgment which has just been delivered by my learned brother and concur in the proposed order, viz., that the appeal is dismissed. So far as the facts of the present case are concerned, the decision in Atul Chandra v. Upendra Narayan : AIR1942Cal478 to which I was a party, appears to me, with respect, to dispose of the matter.