1. This appeal by the defendants arises out of a suit for recovery of arrears of rent in respect of a dar-patni jama, By a subsequent amendment of the plaint, the plaintiff prayed for declaratipn of a charge upon, the defendant's one-sixth share in the superior patni in terms of a, Jaminnaina for securing the payment of the dar-patni rent.
2. The facts which are not in dispute are briefly as follows:
3. The father of the defendants took settlement of one-sixth share of the patni of the plaintiff in dar-patni right upon a potta executed in 1326 B. S. In the said patni the defendants' father had also one-third share and on the same date as the date of the dar-patni potta he executed a jaminnama by which he purported to create a charge upon his one-sixth share in the patni for rent of the dar-patni in dispute. By his amendment of the plaint, the plaintiff wanted to make one-sixth share of the defendants in the patni liable for his dues in respect of the present suit.
4. The defence inter alia was that the provisions of Section 168-A, Bengal Tenancy Act, stood in the way of the plaintiff in enforcing the contract entered into between the parties upon the jaminnama.
5. The trial Court decreed the suit in part upon the finding that the plaintiff would get a decree for the amount claimed without any charge upon the patni interest of the defendants for the realisation of the dues and that the plaintiff would be entitled to execute the decree against the defaulting tenure only. Against this decision the plaintiff preferred an appeal before the District Judge of Howrah. This appeal was successful. The decision of the trial Court was modified and the plaintiff's suit was decreed in full. In the opinion of the Court of appeal below, Section 168-A, Bengal Tenancy Act, was not a bar to the enforcement of the charge provided for in the jaminnama. Against this decision the defendants have preferred this appeal.
6. It has been contended before us by Mr. A. D. Mukherji on behalf of the appellants that upon a proper construction of the jaminnama it did not create a charge and we have been taken in this connection through the various provisions of the jaminnama. As regards this Contention, it may be observed at the outset that in the Courts below it was conceded on behalf of the defendants, that the jaminnama did create a charge. Be that as it may, upon considering the terms of the document carefully we have reached the conclusion that a charge was created by the jaminnama. The terms of the document come within the clear words of Section 100, T. P. Act. It is clear from the recitals of the document that a certain share of the defendant's patni interest was made security for the payment of money to the plaintiff in respect of the darpatni rent. The contract accordingly amounted to a charge, as has been found by the Courts below. As the contract amounted to a charge, no attachment would be necessary in execution of the decree, as pointed out by the Court of appeal below. No attachment of the defendants patni interest will be necessary in execution of a decree with declaration of a charge, if any such decree is passed in favour of the plaintiff.
7. The next point for consideration is whether in these circumstances Section 168 A, Bengal Tenancy Act, stands in the way of the plaintiff. It is contended on behalf of the appellants that Section 168A stands as a bar in way of the plaintiff in enforcing the contract upon the jaminnama, Section 168-A (1) (a) lays down that notwithstanding anything contained in any contract 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, shall not be executed by the attachment and sale of any property other than the entire tenure or holding to which the decree relates. In the present case, as has been observed before, no attachment of the defendants' patni interest will be necessary in execution of the decree obtained by the plaintiff with declaration of a charge. Now the question is whether in these circumstances Section 168-A (1) (a) on defeat the right of the plaintiff. In our opinion the answer should be in the negative. As pointed out in the case of Pratul Chandra v. Naresh Chandra, 50 C. W. N. 655 : (A. I. R. (33) 1946 Cal. 498) as Section 168-A is an encroachment on the rights which the landlord decree-holder had under the ordinary law the ambit of that section ought not to be extended beyond what is warranted by its actual language. In Section 168-A (1) (a) the words used are 'attachment and sale'. In the present case there will be no attachment and on a plain reading of the section, therefore, it would appear that it will not stand in the way of the plaintiff. Mr. A. D. Mukherjee on behalf of the appellants has however, drawn our attention to certain observations of Mukherjea J. in the case of Anil Kumar v. Roy Bimnn Behari, 48 C. W. N. 344 : (A. I. R. (31) 1944 Cal. 240). He has laid particular stress upon the following passage in the judgment of Mukherjea J :
'The intention of the Legislature was obviously to prevent the sale of any property belonging to the judgment-debtor other than the tenure in execution of a rent decree. An attachment comes within the prohibition of the section only as far as it is a necessary step to the sale of the property.'
Relying upon this passage Mr. Mukerjee contends that the primary intention of the Legislature in enacting Section 168-A being to prevent the sale of any property of the judgment-debtor other than the tenure, in the present case as well, which is one of sale without attachment of the defendants' patni interest, Section 163-A will be applicable. This contention appears to us to be without much substance. In the passage in question upon which such strong reliance has been placed by Mr. A. D. Mukherjee, it appears that the word 'sale' was used in a somewhat broad sense, as certain other passages of the judgment will show. It is significant that in Section 168-A the relevant words are ' attachment and sale ' and not ' attachment or sale. ' As pointed out in the case in Anil Kumar v. Ray Biman Behari, 48 C. W. N. 344 : (A. I. R. (31) 1944 Cal. 240) referred to above, the words have been taken verbatim from Section 51(b), Civil P. C., the latter part of the clause, namely, ' by sale without attachment of any property ' being not reproduced in Section 168-A, Bengal Tenancy Act. The omission of those words 'by sale without attachment of any property' is significant and it seemed to imply that it is only that mode of execution, namely, by attachment and sale, which is affected by Section 168-A, Bengal Tenancy Act. Section 168-A has to be construed strictly and upon such strict construction the present case does not, in our opinion, come within the mischief of that section. That being so, Section 168-A cannot stand as a bar in the way of the plaintiff in enforcing the contract upon the jaminnama.
8. In the result, the decision of the Court of appeal below is upheld and this appeal is dismissed with costs.
9. The decree, however, will be drawn up by the Court below according to Form No. 5-A of Appendix D, Civil P. C., so far as is practicable.