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Sudhanya Kumar Poddar Vs. Gouranga Chandra Saha Chowdhury - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.542
AppellantSudhanya Kumar Poddar
RespondentGouranga Chandra Saha Chowdhury
Cases ReferredKaruna Moyi Banerjee v. Surendra Nath Mookerjee
Excerpt:
bengal tenancy act (viii b. c. of 1885), section 148 (h), scope of - assignee of decree for arrears of rent, right of, to execute decree. - .....the contest was between a mortgagee of the tenancy concerned and a purchaser of the tenancy at an execution sale held at the instance of the assignee of the landlord's decree. in both cases the mortgagee succeeded, and as mookerjee, j., points out manurattan nath v. hari nath das 1 c.l.j 500 at pp. 505 : 512. it was wholly immaterial to the mortgagee whether the sale was an absolute nullity or whether, while it was not operative to pass the tenancy as a sale under the bengal tenancy act, it was still a good sale of the right, title and interest of the tenant under the civil procedure code. it was not necessary in those cases to decide that question. all that it was necessary to say was that in either view of the law the mortgagee was entitled. any observations which go beyond that.....
Judgment:

Richardson, J.

1. The determination of this appeal turns on the true construction of Clause (h) of Section 148 of the Bengal Tenancy Act. The clause is in the following terms.

2. 'Nothwithstanding anything contained in Section 232 (now Order XXI, Rule 16) of the Code of Civil Procedure, an application for the execution of a decree for arrears obtained by a landlord shall not be made by an assignee of the decree, unless the landlord's interest in the land has become and is vested in him.'

3. At first sight the meaning of the language used seems plain, but reported oases show that there are difficulties lurking under the surface. In some cases such as Karuna Moyi Barterjee v. Surendra Nath Mookerjee 26 C. 176 : 13 Ind. Dec. (N.S) 717. the question has arisen whether the decree sought to be executed was a 'decree for arrears' within the meaning of the clause. The expressions 'assignee' and landlord's interest' have also been the subject of debate Chhatrapat Singh v. Gopi Chand Bothra 26 C. 750 : 4 C. W. N. 446 : 13 Ind. Dec. (N.S) 1080.; Shambhu Nath Singh v. Sheo Proshad Singh 18 Ind. Cas. 689 : 40 C. 462 : 17 C. W. N. 276 : 17 C. L. J. 227. In the present case there is no doubt that the decree is a decree for arrears obtained by a landlord and assigned for value to a third party and that the landlord's interest has not become vested in the assignee. The contention is that the clause extends no further than to prohibit the execution of an assigned decree under the provision of Chapter XIV of the Bengal Tenancy Act, and does not prohibit execution of the decree as a simple decree for money under the Civil Procedure Code.

4. As regards execution under the Bengal Tenancy Act, the tenant's holding has already been sold by the landlord, the original decree-holder, though the proceeds of the sale were insufficient to satisfy the decree. What the assignee claims is the right to execution under the Civil Procedure Code for the balance of the decretal debt.

5. Some-observations on the question raised have been made in judgments delivered by my learned brother Mookerjee, J., in the cases of Manurattan Nath v. Hari Nath Das 1 C.L.J. 500 at pp. 505, 512. and Rajani Ranta Ghose v. Rama Nath Roy 27 Ind. Cas. 56 : 20 C. L. J. 200 : 19 C. W. N. 458. The opinion was expressed in those cases that there was such a conflict of authority that a reference to a Full Bench would be necessary when the question arose again for decision. That expression of opinion while it is entitled to all our respect is, of course, not binding on us. In the cases cited the question at issue did not arise or did not necessarily arise. It does arise here and it is our duty to examine the authorities and to decide for ourselves whether a reference to a Full Bench ought or ought not to be made.

6. Now, so far as I am aware, there are only two cases which lend any support at all to the assignee's contention, namely, the case of Soshi Bhusun Guha v. Gogan Chunder Shaha 22 C. 364 : 11 Ind. Dec. (N.S) 244 and the unreported case mentioned by Mookerjee, J., in Manurattan's case 1 C.L.J. 500 at pp. 505, 512. No one suggests that those cases were wrongly decided, but when properly understood their effect is really very slight. In Soshi Bhusun's case 22 C. 364 : 11 Ind. Dec. (N.S) 244. the earlier case of Koilash Chunder Roy v. Jodu Nath Roy 14 C. 380 : 7 Ind. Dec. (N.S) 252. where a strict and literal construction of Section 148 (h) was adopted, was apparently not cited. The unreported case followed Soshi Bhusun's case 22 C. 364 : 11 Ind. Dec. (N.S) 244. and if Koilash Chunder Roy v. Jodu Nath Roy 14 C. 380 : 7 Ind. Dec. (N.S) 252. was cited, it was not expressly dissented from. In both cases the contest was between a mortgagee of the tenancy concerned and a purchaser of the tenancy at an execution sale held at the instance of the assignee of the landlord's decree. In both cases the mortgagee succeeded, and as Mookerjee, J., points out Manurattan Nath v. Hari Nath Das 1 C.L.J 500 at pp. 505 : 512. it was wholly immaterial to the mortgagee whether the sale was an absolute nullity or whether, while it was not operative to pass the tenancy as a sale under the Bengal Tenancy Act, it was still a good sale of the right, title and interest of the tenant under the Civil Procedure Code. It was not necessary in those cases to decide that question. All that it was necessary to say was that in either view of the law the mortgagee was entitled. Any observations which go beyond that appear to be no more than dicta of. Guru Charan Nath Bepari v. Kartik Nath 10 C. W. N. 44.

7. On the other hand, there is a strong current of authority in favour of giving to the words of the Statute their plain and obvious meaning. In addition to the case already referred to Koilash Chunder Roy v. Jodu Noth Roy 14 C. 380 : 7 Ind. Dec. (N.S) 252. mention may be made of the cases of Dino Nath Dey v. Golap Mohini Dasi 1 C. W. N. 183; Karuna Moyi Banerjee v. Surendra Nath Mookerjee 26 C. 176 : 13 Ind. Dec. (N.S) 717. and Nagendra Nath Bose v. Bhuban Mohan Chakravarti 6 C. W. N. 91. All these cases no doubt were decided prior to Manurattan's case 1 C.L.J. 500 at pp. 505, 512., but in the absence of any authority express and direct to the contrary, they are in my opinion still binding upon us, and we must follow them.

8. It has been suggested (the suggestion was adopted in the Trial Court) that some observations of the Privy Council in Arthur Henry Forbes v. Maharaj Bahadur Singh 23 Ind. Cas. 632 : 41 I. A. 91 at p. 101 : 18 C. W. N. 747 : (1914) M. W. N. 397 : 15 M. L. T. 380 : 12 A. L. J. 358 : 27 M. L. J. 4 : 41 C. 926 : I. L. W. 1059 : 25 C. L. J. 434 (P. C.). favour the assignee. Their Lordships were concerned with the meaning and effect of Section 65 of the Bengal Tenancy Act. Mr. Ameer Ali delivering judgment referred to Section 148 (h) by way of illustrations and said this.

9. 'The prohibition contained in this Section refers to decrees obtained by the landlord under Section 65. To acquire the right which the Section gives, not only the person obtaining the decree must be the landlord at the time but the person seeking to execute it by sale of the tenure must have the landlord's interests 'vested' in him. In other words, the right to bring the tenure or holding, as the case may be, to sale exists so long as the relationship of landlord and tenant exists.'

10. These words cannot be read as implying that if the assignee cannot bring the tenure or holding to sale, be can still execute his decree as a money-decree. The point was not before their Lordships and no opinion was expressed upon it.

11. For the reasons indicated the appeal, in my opinion, fails and must be dismissed. None appearing for the respondent there will be no costs.

Walmsley, J.

12. I agree that the decision of the lower Appellate Court is correct, and that the appeal must be dismissed.

13. The language of Section 148 (h) appears to me to be free from all obscurity. In most of the cases that have been cited, the question as to the effect of the Section was attended by various complications. It was presented, however, in its simplest form in the case of Karuna Moyi Banerjee v. Surendra Nath Mookerjee 26 C. 176 : 13 Ind. Dec. (N.S) 717. and in the judgment of Maclean, C. J., it is perfectly clear. I am content to follow it and to hold that the clause forbids the assignee to make any application to execute a decree for arrears of rent, unless the landlord's interest in the land has become vested in him.


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