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Tariniprosad Roy Vs. Narayan Kumari Debi - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in(1890)ILR17Cal302
AppellantTariniprosad Roy
RespondentNarayan Kumari Debi
Excerpt:
execution of decree - execution of rent decree obtained against a putnidar--property other than the tenure proceeded against--bengal tenancy act (viii of 1885), section 65--rent decree. - .....the money. having elected that course, he appears to he in the position of an ordinary creditor able to realise his debt by the ordinary forms of attachment and sale of any property which the debtor has subject to any charge which other persons may have upon it. in this particular case the decree is, on the face of it, only a money decree, for the payment of the money, and in my opinion may be enforced in any of the modes in which an ordinary money decree may be enforced, either against the person of the debtor or any property of his that may be found. in this view, we think that the view taken by the subordinate judge was right, and that this appeal must be dismissed with costs.
Judgment:

W. Comer Petheram, C.J.

1. This is a suit which was brought by a landlord against a tenant to recover his rent, and the decree upon the face of it is a decree for a sum of money without charging the tenure with any lien or charge of any kind, and from that I apprehend that it was a suit brought against the tenant person - ally to recover the amount which was due from him to the landlord. This decree having been obtained, the landlord, the decree-holder, makes an application to attach the property of his debtor to answer the decree. The property which he elects to attach is not the tenure, and the question which arises here is whether he was entitled to pursue his remedy against other properties before he had sold the tenure itself.

2. The only section which can be relied upon by the defendant, the tenant, is Section 65 of the Bengal Tenancy Act. This section provides that a tenant under these circumstances shall not be liable to ejectment for arrears, but his tenure or holding shall be liable to sale in execution of a decree for the rent thereof and the rent shall be a first charge thereon.

3. This section, so far as I can see, creates a first charge upon the tenure for the rent of it, and puts the landlord in the position of a first mortgagee, so far as the rent is concerned, but the tenant remains personally liable for the rent. So that the landlord's position is this: he has a mortgage or charge upon the tenure for the rent, and be has a remedy against the tenant personally for the debt to him. That being the case, he has a right to avail himself of either of his remedies. He may, if he chooses, bring an action in which he claims to establish his lien upon the tenure to bring that tenure to sale, notwithstanding any other charge which may have been made upon it, and that whether the tenant had any other property and whether some one else had a charge by way of contractual mortgage upon the tenure.

4. But if he thinks fit, he need not follow that course. He may bring an action to recover the debt the tenant owes him, in the same way as he might if he were a mortgagee in a case where there was a personal covenant in the mortgage-deed, giving the go-by to the mortgage and getting a personal decree against the debtor for the payment of the money. Having elected that course, he appears to he in the position of an ordinary creditor able to realise his debt by the ordinary forms of attachment and sale of any property which the debtor has subject to any charge which other persons may have upon it. In this particular case the decree is, on the face of it, only a money decree, for the payment of the money, and in my opinion may be enforced in any of the modes in which an ordinary money decree may be enforced, either against the person of the debtor or any property of his that may be found. In this view, we think that the view taken by the Subordinate Judge was right, and that this appeal must be dismissed with costs.


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