Skip to content


Manindra Nath Ghose and ors. Vs. Ashutosh Ghose - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.525
AppellantManindra Nath Ghose and ors.
RespondentAshutosh Ghose
Cases ReferredPrafulla Krishna Deb v. Nosibannessa Bibi
Excerpt:
landlord and tenant - decree in rent suit obtained when plaintiff not landlord--execution as rent decree--precedents, value of. - .....taluk was set aside.3. on the 20th january 1914 the respondent applied for the execution of the rent decree which he had obtained for the 5 bighas odd of land in january 1911 against, the present appellant. the proceedings appear to have dragged on for some time.4. on the 27th april 1915 it was ordered that sale proclamation and attachment should be issued under section 163, bengal tenancy act, and the same order was passed on the 2nd august 1915.5. on the 15th may 1915 the putni taluk of the respondent under which appellant held these 5 bighas odd was once more sold under regulation viii. then on the 10th july the present appellant appeared and objected to the sale of the holding on two grounds.(1) that the decree could not be executed as a rent decree as the decree-holder was no.....
Judgment:

1. This appeal arises out of certain execution proceedings. The facts are briefly these: The respondent is or rather was the owner of a certain putni taluk called Mouza Khasmara. The appellants hold a jama of some 5 bighas and odd cottahs at an annual rental of Rs. 27-2-8 within the taluk under the respondent. Their contention is that they have a non-transferable occupancy right in these five bighas. The taluk belonging to the respondent was sold in November 1909 at the instance of the zemindar under Regulation VIII of 1819.

2. On the 14th April 1910 the respondent who was the putnidar brought a suit for rent of the 5 bighas odd, against the present appellant and obtained a decree in January 1911. In February 1911 the sale of the respondent's putni taluk was set aside.

3. On the 20th January 1914 the respondent applied for the execution of the rent decree which he had obtained for the 5 bighas odd of land in January 1911 against, the present appellant. The proceedings appear to have dragged on for some time.

4. On the 27th April 1915 it was ordered that sale proclamation and attachment should be issued under Section 163, Bengal Tenancy Act, and the same order was passed on the 2nd August 1915.

5. On the 15th May 1915 the putni taluk of the respondent under which appellant held these 5 bighas odd was once more sold under Regulation VIII. Then on the 10th July the present appellant appeared and objected to the sale of the holding on two grounds.

(1) That the decree could not be executed as a rent decree as the decree-holder was no longer the landlord.

(2) That it could not be executed as a money decree as the appellant had no transferable interest in it.

6. The learned Munsif found the first objection in favour of the respondent decree-holder. He did not, therefore, find it necessary to decide the second objection. The judgment-debtor then appealed. The learned Subordinate Judge dismissed the appeal. He held that the case was covered by the Full Bench ruling Khetra Pal Singh v. Kritarthamoyi Dassi 33 C. 566 : 3 C. L. J. 470 : 10 C. W. N. 547. and distinguished the case from the Privy Council decision in Arthur Henry Forbes v. Maharaj Bahadur Singh 23 Ind. Cas. 632 : 41 C. 926 : 25 C. L. J. 434 : 18 C. W. N. 747 : (1914) M. W. N. 397 : 15 M. L. T. 380 : 12 A. L. J. 653 : 27 M. L. J. 4 : I. L. W. 1059 (P. C.). He held that the Privy Council case did not overrule the Full Bench decision in Khetra Pal Singh v, Kritarthamoyi Dassi 33 C. 566 : 3 C. L. J. 470 : 10 C. W. N. 547. He held that the decree-holder had the landlord's interest vested in him at the time when he instituted the rent suit and obtained his decree and so was entitled to execute it as a rent decree, even though he had lost his title as landlord before the property was put up to sale. The judgment-debtor has appealed to this Court. His contentions are twofold.

(1) That as the tenure was sold in 1909 and the sale was not set aside till February 1911, the decree for rent, which was obtained in January 1911, is not a rent decree as the respondent was not then the landlord.

(2) Even if it were then a rent decree, the decree-holder is no longer the landlord as the putni was again sold in May 1915, and so cannot execute it as a rent decree. He contends that the Privy Council case Arthur Henry Forbes v. Maharaj Bahadur Singh 23 Ind. Cas. 632 : 41 C. 926 : 25 C. L. J. 434 : 18 C. W. N. 747 : (1914) M. W. N. 397 : 15 M. L. T. 380 : 12 A. L. J. 653 : 27 M. L. J. 4 : I. L. W. 1059 (P. C.) overrules the Full Bench case of Khetra Pal Singh v. Kritarthamoyi Dassi 33 C. 566 : 3 C. L. J. 470 : 10 C. W. N. 547.

7. The respondent argues that with regard to the first contention as the status of the decree-holder as landlord was restored in February 1911, he must be considered to have been a landlord at the time of the rent suit. This is the view of the lower Appellate Court with which we agree. The case is thus within the Full Bench decision, as the relation of landlord and tenant existed when the suit was brought and decree was given therein.

8. With regard to the second contention the respondent submits that the Privy Council case does not overrule the Full Bench decision.

9. It cannot, we think, be said that the Privy Council overruled the Full Bench decision to which they referred and distinguished from the case before them. They laid down, however, certain principles which if applicable fully and in all cases are, as pointed out in the case of Prafulla Krishna Deb v. Nosibannessa Bibi 37 Ind. Cas. 425 : 24 C. L. J. 331. inconsistent with those upon which the Privy Council judgment proceeds. But every judgment must be read as applicable to the particular facts proved and the general expressions used must be considered to be governed and qualified, by the particular facts of the case in which such expressions are found. A case is an authority for what it decides and not for what may seem to follow logically from it. If the Privy Council had considered the Full Bench decision to be erroneous, they would have doubtless said so. The facts of the case before them were wholly different, as the relationship of landlord had in the Privy Council case ceased before the suit was brought. In the result, the decision under appeal must be affirmed and the appeal dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //