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Abdul Rashid Mandal and ors. Vs. Shaharali Molla - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in54Ind.Cas.659
AppellantAbdul Rashid Mandal and ors.
RespondentShaharali Molla
Cases ReferredNoor Ali Chowdhuri v. Koni Meah
Excerpt:
bengal tenancy act (viii b.c. of 1885), section 66(2) - rent decree --'date of decree,' what is--decree under appeal, effect of. - .....in the rent law : that law enacts that if payment is made within 15 days from the date of the decree, execution should be stayed and the court held that the date of the decree there meant the date of the final decree in the case.' the learned judge observed, 'that may be so, but there is no reason why a decree for foreclosure should be taken subject to any similar limitation.' the question, however, whether the words 'date of the decree' in section 66 of the bengal tenancy act should be construed to mean the date of the appellate decree, even where the decree of the court of first instance has been executed before the disposal of the appeal, was not a matter for consideration, and was not considered by binerjee, j., in that case.16. it is urged before us that the fact, that the.....
Judgment:

1. These appeals arise out of suits for rent brought by the plaintiffs, who were non permanent tenure-holders, against the defendants.

2. The defence, so far as concerns these appeals, was that the plaintiffs' right as tenure-holders had come to an end in consequence of a decree for ejectment which had been obtained against them by the superior landlord, Maharaja Sir Pradyot Kumar Tagore. and in execution of which the Maharaja had obtained possession of the tenure against the plaintiffs.

3. It appears that, the present plaintiffs, who were the defendants in the suit for rent brought by the superior landlord, did not pay the amount within fifteen days of the decree. After the appeal was filed, the execution proceedings taken by .the Maharaja were stayed by the Court of Appeal below allowing the defendants (present plaintiffs) to deposit the decretal amount within 15 days, but they did not do so.

4. Possession of the tenure was delivered to the Maharaja in execution and the amount was realised by attachment of moveables. After the appeal was dismissed, the present plaintiffs deposited the decretal amount in Court within 5 days of the decree of the Appellate Court. They then brought the present suits.

5. The Court of first instance decreed the suits. On appeal the lower Appellate Court dismissed the claim of the plaintiffs for the period subsequent to the date on which the superior landlord obtained possession in execution of the decree under Section 66 of the Bengal Tenancy Act.

6. The plaintiffs have appealed to this Court, and the main contention raised on their behalf is that the right of the plaintiffs was subsisting by reason of the fact that the amount ordered to be' paid was paid within 15 days of the decree of the Appellate Court.

7. We do not think that this contention is correct.

8. Section 66 provides for ejectment of a tenant not being a permanent tenure-holder (and certain other classes of tenants) for arrears of rent, and Sub-section (2) of the section provides that in a suit for ejectment for an arrear of rent a decree passed in favour of the plaintiff shall specify the amount of the arrear and of the interest (if any) due thereon, and the decree shall not be executed if that amount and the coats of the suit are paid into Court within 15 days from the date of the decree, or, when the Court is closed on the fifteenth day, on the day upon which the Court re-opens.

9. The question is, what is meant by the words 'date of the decree' in sub-sestion (2) of Section 66 of the act ?

10. It is contended on behalf of the appellants that it means the final decree in the case, and we are referred to the cases of Noor Ali Chowdhuri v. Koni Meah 13 C. 13; Nam Narain Singh v. Lala Raghunath Sahai 22 C. 467 and certain observations of Banerjee, J., in Bhola Nath Bhutacharjee v. Kanti Chundra Bhuttacharjee 25 C. 311 : 1 C.W.N. 671 in support of the contention that when there is an appeal against a decree, the words 'date of the decree' mean the date of the decree of the Appellate Court, because that is the final decree in the case. But the question is whether the defendant in a suit under Section 66 of the Bengal Tenancy Act is entitled to pay the amount of the decree within 15 days of the Appellate Court: s decree, even in cases where the decree of the Court of first instance has been executed before the appeal is disposed of.

11. So long as the appeal is not disposed of, the decree of the Court of first instance is the only decree to be executed and it cannot be said to be superseded by the decree of the Appellate Court so long as the appeal is not disposed of. At the time, therefore, when the decree under Section 66 was executed by the Maharaja, it was a valid decree and the only decree which was capable of execution. The defendants (present plaintiffs) had defaulted to pay the money as provided by Section 66 : and we do not see how in these circumstances the present plaintiffs were entitled to deposit the money after the decree of the Appellate Court and to get rid of the proceedings which had taken place under the decree of the Court of first instance. The cases relied upon on behalf of the appellants do not support their contention.

12. In the case of Noor Ali Chowdhri v. Koni Meah 13 C. 13 the learned Judges held that 'inasmuch as the appellate decree must be presumed to incorporate the terms of the original decree and was the only decree of which execution could be taken, the tenant (judgment-debtor) having paid the decretal amount within 15 days of that decree was protected from ejectment.' Bat the learned Judges further observed at page 16 of the report that 'it was of course open o the decree-holder to take out execution of the original decree at any time before it was superseded by the decree in appeal. Not having done so, we are unable to see that he has any real grievance because the terms of the appellate decree have been complied with by the appellant.'

13. The decision in Nam Narain Singh v. Lala Raghunath Sahai 22 C. 467 also proceeds upon a similar ground. That was a case under Section 88 of act I of 1879, the provisions of which are similar to those of Section 66 of the Banzai Tenancy Act: and the learned Judges in that case held that in a case where the decree of the original Court was not executed pending the appeal to the higher Court, the words 'date of the decree' in the latter part of Section 88 of Act I of 1879 ought to be read 'as the date of the final decree; that the decree of the Appellate Court was the final decree and the only decree capable of execution, and the payment of the decretal amount having been made within 15 days of that decree the application for execution was rightly disallowed.'

14. In both the two cases, the decree of the Court of first instance had not been executed before the appeal was decided and the tenant having paid the decretal amount within 15 days of the appellate decree, the landlord could not object to the same, nor execute the decree of the Court of first instance after the payment had been made.

15. The case of Bhola Nath Bhuttacharjee v. Kanti Chundra Bhuttacharjee 25 C. 311 : 1 C.W.N. 671 related to a mortgage decree. Banerjee, J., distinguished the case of Noor Ali Chowdhuri v. Koni Meah 13 C. 13 on the ground that 'the provision for stay of execution upon payment of arrears forms no part of the decree : it is a provision contained in the Rent Law : that law enacts that if payment is made within 15 days from the date of the decree, execution should be stayed and the Court held that the date of the decree there meant the date of the final decree in the case.' The learned Judge observed, 'that may be so, but there is no reason why a decree for foreclosure should be taken subject to any similar limitation.' The question, however, whether the words 'date of the decree' in Section 66 of the Bengal Tenancy act should be construed to mean the date of the appellate decree, even where the decree of the Court of first instance has been executed before the disposal of the appeal, was not a matter for consideration, and was not considered by Binerjee, J., in that case.

16. It is urged before us that the fact, that the decree of the Court of first instance was executed before the disposal of the appeal, ought not to make any difference and that, as a matter of construction, the defendant in a suit under Section 66 is entitled to pay the decretal amount within 15 days of the date of the decree, which means the appellate decree.

17. If this contention were accepted, it would follow that the decree of the Court of first instance cannot be executed so long as the appeal is not disposed of : because it cannot be held that proceedings in execution of a decree under Section 66 of the Act passed by the Court of first instance and under which the defendant is ejected and possession delivered to the landlord, must be set aside if the tenant pays the decretal amount within 15 days of the appellate decree, although that decree is one of dismissal. We think that such a construction would be unreasonable, because it would then be in the power of the defendant by preferring an appeal to annul all the proceedings taken under a decree which, so long as it is not superseded by the decree of the Appellate Court, is a good and valid decree.

18. We are accordingly of opinion that the lower Appellate Court is right in holding that the rights of the plaintiffs, name to an end under the decree obtained by the superior landlord against them.

19. There remains to consider one short point, namely, that all the present plaintiffs were not parties to the decree in the suit by the Maharaja. It appears, however, that that suit was brought against all the registered tenants and that the plaintiffs who were left out. were not registered tenants. That being so, the contention fails.

20. The appeals are dismissed with costs.


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