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Ratan Lal Biswas Vs. Nafar Chandra Pal Chowdhury and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1922Cal571,70Ind.Cas.451
AppellantRatan Lal Biswas
RespondentNafar Chandra Pal Chowdhury and ors.
Excerpt:
execution of decree - executing court, powers of. - .....decree and we must give effect, if possible, to both, the decrees. the second decree was passed before the sale of the property. it must, we think, be taken, that the sale was subject to the directions contained in the second decree. moreover, it was pointed out during the course of the argument that, though the first decree was a decree for rent, it was not an ordinary rent decree under the bengal tenancy act under which all encumbrances would be avoided but it was a special rent decree which was passed on a contract between the parties. we are therefore, of opinion, that the appeal succeeds, and that the respondent must proceed first of all against the property as the decree itself directs.2. the appellant is entitled to his costs in all the courts. the hearing fee in this appeal is.....
Judgment:

1. In this case there were two rent decrees, both of which provided that the landlord should proceed to enforce his claim for rent by sale of the tenure. Under the first decree the property was sold and purchased by the decree-holder. The landlord respondent now asks for personal execution of the second decree. The answer of the appellant is, that he cannot have such 'personal execution, because there was a contract that the property should be proceeded against first, which contract was embodied in the decree. The reply of the respondent in effect is this, that he is not obliged to follow the directions given in the second decree as regards proceeding against the property first, because the property had already been sold under the first decree. The answer to this contention, I think, is that we cannot go behind the decree and we must give effect, if possible, to both, the decrees. The second decree was passed before the sale of the property. It must, we think, be taken, that the sale was subject to the directions contained in the second decree. Moreover, it was pointed out during the course of the argument that, though the first decree was a decree for rent, it was not an ordinary rent decree under the Bengal Tenancy Act under which all encumbrances would be avoided but it was a special rent decree which was passed on a contract between the parties. We are therefore, of opinion, that the appeal succeeds, and that the respondent must proceed first of all against the property as the decree itself directs.

2. The appellant is entitled to his costs in all the Courts. The hearing fee in this appeal is assessed at three gold mohurs.


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