1. This is an appeal on behalf of the judgment-debtor and it is directed against an order made by the Subordinate Judge, Fourth Court, Alipore, on 28th February 1941, rejecting certain objections preferred by the appellant under Section 168A, Ben. Ten. Act. The material facts are, not in controversy and may be shortly stated as follows : One Brajendra Kumar Banerjee owned an undivided eight annas share in zemindary Lot. No. 10, Sunder bans, appertaining to touzi No. 2368 of the 24-Farganas Collectorate. On 14th December 1920, Brajendra granted an ejara lease in respect of his eight annas share in the aforesaid touzi to Satish Chandra Banerjee, the appellant before us, for a period of 30 years at an annual rental of Rs. 2100. In addition to the rent reserved, the lessee undertook to pay all revenue, cess and embankment charges payable to Government in respect to the property. On 8th February 1930, Brajendra mortgaged his interest in the aforesaid touzi to Nagendra Nath Pal and others, the predecessors of the (present respondents, to secure an advance of rupees 12,000. To ensure regular payment of interest due 'to the mortgagees, the mortgagor assigned to them the rent or munaf a due to him by the ijaradar Satis under the terms of the ijara lease dated 14th December 1920. On the strength of this provision in the mortgage deed, the mortgagees instituted a suit for rent against Satis on 6th April 1934, claiming rents payable under the ijara patta for the years 1337 to 1340 B.S. A decree was made by the trial Court on 15th December 1934, which was affirmed on appeal by this Court on 24th June 1937.
2. After certain previous applications for execution of the decree, the present execution case was started on 8th September 1989, and the decree-holders prayed for realization of the balance of the decretal dues by attachment and sale of certain properties other than the tenure in arrears. Thereupon, objections were raised by the judgment-debtor under Section 168A, Ben. Ten. Act, and the decree-holders sought to get round the objections by saying that the decree was not one for rent and, consequently, was not hit by Section 168A, Ben. Ten. Act. It was further contended that Section 168A was ultra vires of the Provincial Legislature. The trial Court by its judgment dated 28th February 1941, negatived the first ground urged by the decree-holders but gave effect to the second. The learned Subordinate Judge was of opinion that the provision of Section 168A, Ben. Ten. Act, being repugnant to that of an existing Indian law which was contained in Section 51, Civil P.C., was void to that extent under Section 107(1), Government of India Act, and although it was one of the matters enumerated in the Concurrent List no assent of the Governor-General having been taken, Sub-section (2) of Section 107 had no application. It is against this judgment that the present appeal has been preferred.
3. Mr. Rama Prosad Mookerjee, who appears on behalf of the appellant, has contended before us that the Court below was wrong in holding that Section 168A, Ben. Ten. Act, was ultra vires of the Provincial Legislature or was void under Section 107, Government of India Act. Mr. Chakravarti, who appears on behalf of the respondents, besides attempting to answer the contention of the appellant tried to support the decision of the learned Subordinate Judge on the other ground which was decided against his client, namely, that the decree was not one for rent and, consequently, could not attract the operation of Section 168A, Ben. Ten. Act. We will have to consider both these points in the present appeal. So far as the first point is concerned, we are of opinion that the view taken by the Court below is wrong. The identical question recently came up for consideration before a Division Bench of this Court in Satish Chandra v. Sudhir Krishna : AIR1942Cal429 decided on 27th February 1942. It was held by Nasim Ali and Pal JJ., that Section 168A, Ben. Ten. Act, was a valid piece of legislation which was quite within the competency of the Provincial Legislature. We may say, that we are in entire agreement with that decision. It is difficult to say that there is any real conflict between Section 168A, Ben. Ten. Act, and Section 51, Civil P.C. Section 51 simply enumerates in general terms the various ways in which the Court may order execution of a decree. Obviously, all the modes are not open to an executing Court in every case. The jurisdiction has got to be exercised not only under the conditions and limitations prescribed by the Code, but the proper mode of execution would depend upon the nature of the decree and the circumstances of each individual case.
4. Section 51(b) of the Code mentions attachment and sale of any property as one of the methods of executing a decree, and all that it means is that the executing Court in a proper case would be justified in ordering such form of execution. But the section, we think, presupposes that the property is saleable in law, and if by virtue of any provision of substantive law, a property cannot be sold. Section 51 of the Code does not, in our opinion, empower the Court to sell the same. Even if any conflict is found to exist, it is avoided, by Section 4 of the Code under which the general provisions contained in the Code, have got to give way to a special procedure laid down by any law for the time being in force. Quite apart from this, the appellant, in our opinion, is right in contending that the matter dealt with in Section 168A, Ben. Ten. Act, does come under Items 2 and 21 taken together, of the Provincial List and it is thus within the competence of the Provincial Legislature. What the section purports to do is to give jurisdiction or power to Courts in this Province to proceed in a particular way with regard to collection of arrears of rent by landlords by institution of suits and hence it is intra vires of the Local Legislature even if it is assumed that it is in conflict with an existing Indian law.
5. Reference may be made in this connexion to the recent pronouncement by a Special Bench of this Court in Sukumari v. Rajdhari Panday : AIR1942Cal49 and the reasons given by the learned Chief Justice with regard to Section 3, Non-Agricultural Tenancy (Temporary Provisions) Act, Bengal, are to a very large extent applicable in the present case. The appellant, therefore, is entitled to succeed on this point.
6. We have now to consider the other point raised by Mr. Chakravarti as to whether the decree in this case was a decree for rent which comes under the purview of section 168A, Bengal Tenancy Act. To invoke the provision of section 168A, it is necessary that the decree must be one for rent though it may not have the effect of a rent decree proper and can operate only as a money decree. 'Rent' as defined in the, Bengal Tenancy Act means whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of use and occupation of the land held by ' the tenant : vide Section 3, Clause (13). The two essential characteristics of rent which differentiate it from other forms of debt are : (1) that it is due for the use and occupation of the land and (2) that it is payable to the person under whom the land is held. In the present case, the rent which is reserved by the ijara patta is certainly payable by the appellant for use and occupation of the land, so the first condition is thereby fulfilled. Mr. Chakravarti argues that the second element is lacking in this case as the munafa or rent was under the terms of the mortgage document payable to his clients who were not the landlords and under whom the ijaradars could not be said to hold the lands. We do not think that we can accept this contention as sound. The mortgage bond executed by Brajendra seems to us to be a mixed, simple and usufructuary mortgage. There was indeed a personal covenant to pay the money and a right of sale as in the case of a simple mortgage; but the mortgagor expressly assigned to the mortgagees, his right to recover rent from the ijaradars and empowered them to appropriate so much of it as was necessary to pay the interest due to them. The mortgage was only of the landlord's interest, and the document expressly recites that possession of the property was delivered to the mortgagee in the only way possible, namely by assigning over to him the right to realise rent. It is true that the mortgagee was not given a right to the entire rent and he was bound to refund the balance, if any, that remained after deducting the costs of litigation and the interest due to him. But even then the mortgage would in our opinion be regarded as a usufructuary mortgage. The definition of a usufruotuary mortgage, as given in Section 58(d), T.P. Act, dearly shows that there may be a condition in such a transaction that the mortgagee was to receive only a part of the rents and profits which he was to appropriate in lieu of interest. As the respondents, in our opinion, were usufructuary mortgagees, it cannot be disputed that they occupied the same position as landlords and, consequently the munafa paid to them by the ijaradars would be rent in the proper sense of the word : vide the case in Brohamanda v. Hem Chandra Mitra ('14) 1 A.I.R. 1914 Cal. 910. It cannot be said that the respondents were mere assignees of future rent ; they were in possession of the landlord's interest also as usufructuary mortgagees and, consequently the decree could not but be a decree for rent. The result therefore is that the appeal is allowed, the order of the lower Court is set aside, and the application of the decree-holders to execute the decree by attachment and sale of other properties is refused. We make no order as to costs in this appeal. The appellant will be entitled to his costs in the Court below.