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Bhupendra Nath Mukherjee and anr. Vs. Jyosit Mookerji and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtKolkata
Decided On
Case NumberA.F.O.O. Nos. 34 and 35 of 1947
Judge
Reported inAIR1950Cal485,54CWN493
ActsBengal Tenancy Act, 1885 - Section 168A and 168A(3)
AppellantBhupendra Nath Mukherjee and anr.
RespondentJyosit Mookerji and ors.
Appellant AdvocateApurba Charan Mukherjee ; and Ganga Narain Chandra, Adv.
Respondent AdvocateSarat Chandra Janah, Adv.
DispositionAppeal dismissed
Cases ReferredNaresh Chandra v. Bhupendra Narain Singh. Appeal
Excerpt:
- .....in character which thus imposed a duty upon the court which had to be discharged by it whenever rent sales took place after that section had come into force. the direction given in that case was to the effect that when the landlord auction-purchaser applies for the execution of a decree for subsequent rent accrued due after the rent sale, the execution court cannot refuse to execute the decree. the court should call upon the landlord either to deposit the amount of rent previously decreed in his favour or to enter satisfaction not of the entire decretal dues but the amount actually payable as rent. if the money is paid the judgment-debtor would be entitled to withdraw the amount and pay the same towards the satisfaction of his dues under the decree for rent and the decree will be.....
Judgment:

1. These are two appeals on behalf of the judgment-debtors arising out of orders, passed by the Subordinate Judge, Hooghly, disposing of objections raised by them Under Section 47, Civil P. C.

2. The judgment-debtors hold certain Patnis under the decree-holders opposite parties. Two suits were brought by the landlord for the realisation of Patni rent which had fallen due.. In September 1944, the suits were decreed: in one case for rent upto the end of 1348 B. S. and in the other upto Ashar 1349 B. S. On 12th March 1945, the landlord decree-holder purchased the Patnis for Rs. 30,000/- and Rs. 25,000/- respectively, which covered a portion of the amounts due under the decrees, viz., Rs. 42,639 11-9 and Rs. 53,254-10-111/2 respectively. On 9th April 1945, some of the judgment-debtors filed applications for setting aside the sale and immediately, thereafter, the landlord moved the Court for the appointment of a Receiver. The two matters were taken up together for hearing on 21st August 1945. After the Subordinate Judge had expressed the view that the application for setting aside the sale was not in a proper form the paid petition was withdrawn. The provisions of Section 168A, Ben. Ten. Act had been in force from 8th January 1941; but on 27th August 1945, the sales were confirmed by the Court without requiring the decree-holders to satisfy the provisions contained in Sub-section (3) of Section 168A of the Act. More than 14 months later on 7th November 1946, the present applications were filed on behalf of the judgment debtors Under Section 47, Civil P. C., praying for setting aside of the order dated 27th August 1945, confirming the sales. It was maintained that the Court had no jurisdiction to confirm the sales as the decree-holders had not fulfilled the imperative conditions laid down in Section 168A of the Act.

3. The decree-holders auction-purchasers con-tend that as the judgment-debtors had come up to the High Court in Appeal (F. M. A. 2 and 3 of 1946) against the order dated 27th August 1945, confirming the sale, and the point now raised had not been urged before this Court before the said appeals were dismissed on 4th July 1946, the judgment-debtors are not entitled to raise this question at this stage. Further the sales having been confirmed the judgment-debtors are not entitled to obtain any relief in the present proceedings.

4. The learned Subordinate Judge held that as the present objection had not been raised before the confirmation of sale or even in the High Court on the previous occasion he could not, after the disposal of the appeals by this Court, set aside the orders confirming the sale. But at the same time he held that the provisions of Section 168A (1) (b) and (3), Ben. Ten. Act were mandatory and he made the following conditional order:

'As there has been no deposit or certificate with regard to the rent falling due from the date of the suit till the date of the confirmation of sales, so the decree-holder landlords will be directed to certify satisfaction of this rent within certain, date. If they comply with this order of the Court the sales will remain confirmed, otherwise they will be set aside as contemplated in Amano Barmanya v. Uma Charan Das : AIR1947Cal330 .'

5. This Court had occasion to consider in Phani Bhusan v. Purna Chandra : AIR1944Cal199 where the word 'purchaser' in Clause (b) of Sub-section (l) and in Sub-section (3) of Section 168 A, Bangal Tenancy Act, was not limited to a stranger purchaser only but also included a decree-holder purchaser. The decree-holder purchaser being held to be included within that term a question arose whether such a decree-holder auction purchaser wag also bound to make the deposit as under Sub-section (3) of the rent that had accrued due subsequent to the institution of the suit. B.K. Mukerji and Pal JJ. held that in such a case a cash deposit was not necessary but a certificate of payment of the dues made by the decree-holder purchaser would be deemed to be a sufficient compliance of the requirements of this Sub-section- It was pointed out that neither party urged before the Court that by reason of the decree-holder himself being the purchaser and thus being made liable by Clause (b) of Section 168A (1) to himself to pay the amount of arrears subsequently accruing due, the obligation itself was discharged by the operation of law, No opinion was expressed on such a contention but the learned Judges proceeded to observe at p. 215 :

'It however seems obvious if this be the contention of the decree-holder purchaser the judgment-debtor will have no possible objection to it. He is discharged of the liability all the same and that is all that he is concerned with.'

6. Amano Barmanya v. Uma Charan Das : AIR1947Cal330 is an authority for the proposition that the provisions contained in Sub-section (3) of Section 168A, Bangal Tenancy Act, were mandatory in character which thus imposed a duty upon the Court which had to be discharged by it whenever rent sales took place after that section had come into force. The direction given in that case was to the effect that when the landlord auction-purchaser applies for the execution of a decree for subsequent rent accrued due after the rent sale, the execution Court cannot refuse to execute the decree. The Court should call upon the landlord either to deposit the amount of rent previously decreed in his favour or to enter satisfaction not of the entire decretal dues but the amount actually payable as rent. If the money is paid the judgment-debtor would be entitled to withdraw the amount and pay the same towards the satisfaction of his dues under the decree for rent and the decree will be executed only for the balance of the decretal amount if there remains anything unpaid, If no cash deposit were made by the landlord but the latter certifies partial satisfaction of the decree that he was executing, acknowledging receipt of the amount that is due as rent the effect will be the same. If no payments are made the previous order confirming the sale made by the Court will be set aside and the Execution Case restored to file and proceeded with in accordance with law.

` Recently the point now in issue had come up for consideration in Naresh Chandra v. Bhupendra Narain Singh. Appeal from original order No. 138 of 1945: : AIR1950Cal15 and Appeals from Appellate orders Nos. l and 2 of 1946, decided on 12th May 1949. I was a party to that decision and as the judgment is unreported the conclusions arrived at by us may usefully be quoted here :

'When the decree-holder himself is the auction purchaser the payment of the subsequent arrears which had accrued due is to be made to himself and the said decree-holder is entitled to an order confirming sale by either paying himself or on declaring that the amount due is wiped out. When a decree-holder auction purchaser applies for the confirmation of the sale without either depositing the amount of subsequent arrears or discharging the said dues formally he must be taken to have given up his right to claim such arrears at any subsequent stage. We must be deemed to have done what ho was required to do before he could get an order confirming the sale. Under the circumstances when the attention of the executing Court is drawn subsequently to the fact that the sale had already been confirmed without the decree-holder auction purchaser fulfilling the conditions laid down Under Section 168A, Bangal Tenanay Act, all that the executing Court need do is to record an order that the total amount of rent, case and interest which had accrued due up to the date of confirmation is deemed to be satisfied by the decree-holder auction purchaser having applied for such confirmation and the confirmation having been made. Unless the decree-holder auction purchaser files an application entering satisfaction of the dues which had so accrued the Court is, in our opinion competent to declare the said dues as having been satisfied by implication,'

7. Applying the principles enunciated above we hold that the decree-holders when they applied for the confirmation of the sales they thereby entered satisfaction by implication of the amount which had accrued due to them for the period upto the date of confirmation of sale. The objection raised at this stage about the legality of the order for confirmation is, there-fore, overruled,

8. It may be further noticed that after the order was passed by the learned Subordinate Judge the decree-holders filed a petition stating that the rents falling due from the date of the institution of the suit till confirmation of sale have been wiped off.

9. These appeals are accordingly dismissed. In the circumstances of this case each party will bear his respective costs in this Court.


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