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Thakomoni Dasi Vs. Mohendra Nath Dey Sarkar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in3Ind.Cas.389
AppellantThakomoni Dasi
RespondentMohendra Nath Dey Sarkar
Cases ReferredKedar Nath v. Ardha Chunder
Excerpt:
bengal tenancy act (viii of 1885), schedule iii, article 6 as amended by act i b.c. of 1907, section 61, sub-section 4--limitation--application for execution--decree obtained before amendment of article 6--co-sharer landlord--decree in rent suit by co-sharer landlord whether decree under bengal tenancy act. - .....form applies only to decrees in suits commenced after the amendment and that the language of the amended article could not appropriately be applied to decrees made before the amendment came into operation. our attention was particularly invited to the words 'landlord and tenant to whom the provisions of this act are applicable' and it was contended that the term 'this act' means this act as now amended. it was further suggested that the act was not applicable before its amendment to suits by one of several joint landlords. we are unable to accept this line of reasoning as well as founded. article 6 in its amended form was in operation when the present application was made and its language plainly indicates that it is not limited in application to decrees in suits commenced after the.....
Judgment:

1. The substantial question of law which calls for decision in this appeal is, whether an application for execution, of a decree for arrears of rent obtained by one of several joint landlords in respect of. her share, is governed by the rule of limitation prescribed in Clause 6 of schedule III of the Bengal Tenancy Act. The appellant before this Court sued the respondent for arrears of rent of a tenancy governed by the Bengal Tenancy Act and obtained a decree on the 13th October 1898, which was confirmed on appeal by the Subordinate Judge on the 6th November 1899 and ultimately by this Court on the 2nd June 1902. There were execution proceedings in 1904, 1905 and 1906, before the present application for execution was presented on the 20th January 1908. The objection of the judgment-debtor is that the application is barred by limitation under article 6 of schedule III of the Bengal Tenancy Act. The Court of first instance has allowed the objection on the ground that the case is governed by article 6 as amended by Bengal Act I of 1907 and that whatever doubt might have existed under the law before the recent amendment there is no question now that the article is applicable to an application for execution of a decree obtained by one of several joint landlords for his share of the rent. In this view, the Court of first instance has dismissed the application as barred by limitation. Upon appeal, this order has been confirmed by the District Judge. The decree-holder has now appealed to this Court), and on her behalf it has been argued that the article in its amended form has no application, and that if the law as it stood before the amendment, is applied, the application for execution is not barred under the authority of the decision in Kedar Nath Banerjee v. Ardha Chunder Roy 29 C. 54. Article 6, we quote so much of it only as bears upon the present discussion as amended by Bengal Act I of 1907 Section 61 Sub-section 4, reads as follows: An application for the execution of a decree or order made in a suit between landlord and tenant to whom the provisions of this Act are applicable and not being a decree for a sum of money exceeding Rs. 500, must be made within three years from the date of the final decree of the appellate Court. This article was in force at the time when the application for execution now under consideration was made, and consequently prima facie governed the matter Gurupadapa. v. Virbhadra Dutta 7 B. 459; Jug Mohun Mahto v. Luchvieshur Singh 10 C. 748; Becharam Irsangapa v. Abdul Wahed 11 C. 55 and Deb Narain Dutt v. Narendra Krishna 16 C. 267. It was suggested, however, by the learned Vakil for the appellant that article 6 in its amended form applies only to decrees in suits commenced after the amendment and that the language of the amended article could not appropriately be applied to decrees made before the amendment came into operation. Our attention was particularly invited to the words 'landlord and tenant to whom the provisions of this Act are applicable' and it was contended that the term 'this Act' means this Act as now amended. It was further suggested that the Act was not applicable before its amendment to suits by one of several joint landlords. We are unable to accept this line of reasoning as well as founded. Article 6 in its amended form was in operation when the present application was made and its language plainly indicates that it is not limited in application to decrees in suits commenced after the amendment came into force. To determine whether article 6 is applicable two tests have to be applied; namely, first, was the decree sought to be executed made in a suit between landlord and tenant, and, secondly, did the provisions of this Act, that is, the Bengal Tenancy Act, (as contra-distinguished, from other Acts for example, other Tenancy Acts or the Transfer of Property Act) apply to the landlord and tenant. So far as the first question is concerned, it cannot be disputed that the answer must be in the affirmative; so far as the second question is concerned, it is in our opinion clear that it also must be answered in the same manner. It is erroneous to suppose that before the Bengal Tenancy Act was amended in 1907, the provisions of the Act did not apply to a co-sharer landlord. That many provisions of the Act were applicable to co-sharer landlords does not admit of serious dispute. For instance, in the very litigation out of which the present proceedings have arisen two provisions of the Act were applied for the benefit of the landlord. An examination of the records of the suit shows that a decree for damages was made at the full rate mentioned in Section 68, and article 2 (6) of schedule III was applied to enable the landlord to obtain a decree for arrears of rent for four years. If the provisions of the Bengal Tenancy Act had not been applicable to the landlord and tenant now before us, the claim of the former to realise rent for more than three years would have been successfully met by the plea of limitation and she could further have obtained a decree for interest only at the contract rate. If, therefore, the provisions of the Act are applicable to the parties, any application for execution of the decree made in the suit must be goverred by article 6 in its amended form. In this view, it is not necessary for us to consider in detail whether even before the amendment, the application for execution of a decree for rent obtained ' by a co-sharer landlord for his share of the rent was or was not governed by article 6. We need only observe, that if the question did arise, a reference to a Full Bench would be necessary, as we are not prepared to follow the decision in Kedar Nath Banerji v. Ardha Chunder Roy 29 C. 54. As at present advised we are inclined to adopt the view that a decree in a suit for rent by a co-sharer landlord for his share of the rent is a decree made under the Act, because it is made in a suit tried in accordance with the procedure prescribed in Chapter XIII of the Act. To determine whether a decree has been made under the Act the text to be applied is, whether it terminates a suit tried in accordance with the Act, and not whether it is capable of execution under Chapter XIV of the Act, Sufficient importance was not attached to this distinction in the case of Kedar Nath Banerjee v. Ardha Chunder Boy 29 C. 54 in which it was assumed that a suit for rent by. the entire body of landlords is, by virtue of Section 188, instituted under the Act, whereas a suit by a co-sharer landlord for his share of the rent is instituted under the general law. This distinction, however, can no longer be maintained in view of the decision of the Judicial Committee in Promoda Nath Boy v. Ramani Kant Boy 35 C. 331 : 12 C.W.N. 249 : 7 C.L.J. 139 : 3 M.L.T. 151 : 10 Bom. L.R. 66 : 18 M.L.J. 43 : 35 1. A. 73 where it , was pointed out that the filing of a suit for rent, whether by a co-sharer landlord for his share of the rent, or by the entire body of landlords for the whole amount in arrears, is not a thing which the landlord is under the Act required or authorised to do. Both classes of suits are commenced under the general law, and, they are both tried under the judicial procedure described in Chapter XIII of the Act. When we reach the stage of the enforcement of the decrees made, in both classes of suits, we find, however, that Chapter XIV defines certain special consequences which follow from the execution of a decree for the entire rent and also prescribes the mode of execution of such a decree. From this point of view, a decree obtained by a co-sharer landlord for his share of the rent would be appropriately described as a decree made under the Act, and this was unquestionably the view which was generally accepted before the decision in Kedar Nath v. Ardha Chunder 29 C. 54. In the view, however, which we take of the position of the parties in the present case, it is needless to examine further the law as it stood before the amendment of 1907.

2. The result, therefore, is that the order made by the Court below must be affirmed and this appeal dismissed with costs. We assess the hearing fee at three gold mohurs.


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