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Akhil Kanta Lahiri and anr. Vs. Aswini Kanta Bhattacharji and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1936Cal464,165Ind.Cas.631
AppellantAkhil Kanta Lahiri and anr.
RespondentAswini Kanta Bhattacharji and ors.
Cases ReferredGopal Chandra Kundu v. Drastulla Sheikh
Excerpt:
- .....in patni, fell in arrears, and a decree was obtained for realization of the same. a portion of the rents decreed in favour of manimukta was realized during her lifetime, and the decretal amount which was still outstanding along with all the outstanding profits of the properties in which manimukta had a life interest, were bequeathed to the three applicants for execution of decree with which we are concerned in this case, who were also appointed executors by the will executed by manimukta before she died.2. the application for execution as made by the legatees under the will of manimukta, who were also the executors appointed by her will, was resisted by the sons and heirs of annada kanta lahiri on the ground that the provisions contained in section 148 (o), ben. ten. act, operated as a.....
Judgment:

1. This appeal has arisen out of an application for execution of decree. The application was made by three persons as executors to the estate of the late Manimukta Debya who had a life estate in certain properties. During the lifetime of Manimukta, rents due in respect of these properties which were leased out to Annada Kanta Lahiri by her, in Patni, fell in arrears, and a decree was obtained for realization of the same. A portion of the rents decreed in favour of Manimukta was realized during her lifetime, and the decretal amount which was still outstanding along with all the outstanding profits of the properties in which Manimukta had a life interest, were bequeathed to the three applicants for execution of decree with which we are concerned in this case, who were also appointed executors by the will executed by Manimukta before she died.

2. The application for execution as made by the legatees under the will of Manimukta, who were also the executors appointed by her will, was resisted by the sons and heirs of Annada Kanta Lahiri on the ground that the provisions contained in Section 148 (o), Ben. Ten. Act, operated as a bar to the execution as applied for. It was asserted that an application for execution of a decree for arrears of rent obtained by a landlord was not maintainable by an assignee of the decree unless the landlord's interest in the land has become and is vested in the applicant for execution. The objection so raised was overruled by the Courts below; hence this appeal. It may be taken to be a settled rule (in spite of some amount of diversity of judicial opinion) that the provision of Section 148 (o) is a complete bar to an application for execution of a decree for rent by an assignee who has not obtained assignment of the landlord's interest, even on a simple decree for money under the Code of Civil Procedure (see in this connection the decision of this Court in RahimuddiLupti v. Jogendra Kumar Sinha (1931) 54 C L J 596, in which the state of authority of decisions of this Court is fully indicated). As it has been pointed by Rankin, C. J., in Gopendra Prasad v. Ram Kishore 1933 Cal 919, it would not be safe to desert the plain and natural meaning of the language of the statute upon any theory that has to be based on the supposed policy of the legislature. The intention of the law as it now stands is however clear that the only person who could be allowed to execute a decree for rent was the person who at the execution was entitled by reason of a vested landlord's interest to demand rent: 28 C L J 33n Gopal Chandra Kundu v. Drastulla Sheikh (1918) 28 C L J 33n. 1936 C/59 & 60.

3. In support of the position that the application for execution was maintainable under the law, it was contended on behalf of the respondents that the application was made by executors to the estate of Manimukta Debya, who were not assignees as contemplated by Section 148 (o), Ben. Ten. Act, but were persons on whom the interest of Manimukta had devolved by operation of law, and the execution as applied for should have been allowed to proceed on the ground that the applicants were transferees by operation of law as contemplated by O.21, Rule 16, Civil P. C. It is not possible to give effect to this contention, inasmuch as an assignment must be taken to include an assignment by deed and an assignment by operation of law, as in the case of an executor. Furthermore, in the case before us the application for execution was by persons who are themselves the legatees under the will appointing them executors, and the position taken up that they cannot be taken to be assignees as contemplated by S.148 (o), Ben. Ten. Act, is wholly insupportable. It was pointed out in support of the order passed by the Courts below that in the present case the landlord's interest so far as the Putni lease was concerned had altogether ceased to exist with the demise of Manimukta Debya, and had merged in the interest of the lessee Annadakanta Lahiri and his heirs, and had no separate existence, and that that interest could never be acquired by the transferees of the arrears of rent, the applicants for execution. The position thus indicated does not however afford any justification for the violation of the provisions of the law as contained in Section 148 (o), Ben. Ten. Act, that the only person who could execute a decree for rent who at the time of the execution was entitled to do so for the reason that the interest of the landlord had vested in him enabling him to demand rent. In our judgment, on the clear and definite provision of the law as contained in Section 148 (o), Ben. Ten. Act, the application for execution of decree in the case before us must be held to be not maintainable. The appeal is allowed; the decisions of the Courts below are set aside and the application for execution giving rise to this appeal is dismissed. There is no order as to costs in this appeal.


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