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Superintendent and Remembrancer of Legal Affairs Vs. Kajal Hoaladar - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in62Ind.Cas.187
AppellantSuperintendent and Remembrancer of Legal Affairs
RespondentKajal Hoaladar
Cases ReferredSheobarat Singh v. Nawrangdeo Narain Singh
Excerpt:
bengal tenancy act (viii of 1885), section 121 - distraint order, legality of--disobedience of order of attachment made in pursuance of distraint order--penal code (act xlv of 1860), sections 143, 424. - .....section (that is section 121) is legal only for rent of the holding for the year preceding the current year. in this case the rent was due in the year 1325 b.s., and the distraint order was also passed in the same year.' that ruling of the learned sub-divisional magistrate seems to be directly contrary to the provisions of section 121 and, with regard to the case to which the learned sub-divisional magistrate has referred, it seems to me that it is no authority for the proposition which the sub divisional magistrate has enunciated and which i have just read. the proposition seems to me to be based upon a passage at page 367. in that case the landlord bad distrained not only for rent but also for damages: and, this court held that the distraint was bad, amongst other reasons, on account.....
Judgment:

Superintendent Sanderson, C.J.

1. This is the appeal by the Government from an order made by the Sub-Divisional Magistrate of Bhola. The respondent was charged with offenses under Sections 143 and 424 of the Indian Penal Code. Shortly stated, the gist of the charge was that the respondent had out some paddy after the peon, an officer of the Court, had attached it in pursuance of an order which was made on the 2nd December 1919, The rent which was alleged to be payable, and in respect of which the order of distraint had been made, according to the facts which have been placed before us, was payable on the 15th of Agrahayan 1326 (which corresponds to the 1st of December 1919). Consequently, on the 16th Agrahayan 1326 (the 2nd of December) the rent was in arrear--that is clear from Section 54(3) of the Bengal Tenancy Act, which provides as follows: 'Any instalment or part of an instalment of rent not duly paid at or before the time when it falls due shall be deemed an arrear.' The order for distraint was made under Section 121 of the Bengal Tenancy Act, which provides as follows: 'Where an arrear of rent is due to the landlord of a raiyat or under raiyat and has not been due for more than a year, and no security has been accepted therefor by the landlord, the landlord may, in addition to any other remedy to which he is entitled by law, present an application to the Civil Court requesting the Court to recover the arrear by distraining, while in the possession of the cultivator, (a) any crops or other products of the earth standing or ungathered on the holding....'

2. The order for distraint was made on the 2nd December 1919 under that section. The peon attached the crops on the holding on the 4th December, and it was alleged that thereafter the respondent, inspite of the protest of the peon, had gone on the land and had out the crops. Consequently the charge to which I have already referred was presented against the respondent. The learned Sub-Divisional Magistrate has not expressed any opinion as to the fasts or the merits of the ease, but he has disposed of it on a point of law which was taken by the learned Pleader who was appearing on behalf of the respondent, and he has based his decision upon a ruling of this Court in Sheobarat Singh v. Nawrangdeo Narain Singh 28 C. 364. The ground of his decision is stated in this way: A distraint order under this section (that is Section 121) is legal only for rent of the holding for the year preceding the current year. In this case the rent was due in the year 1325 B.S., and the distraint order was also passed in the same year.' That ruling of the learned Sub-Divisional Magistrate seems to be directly contrary to the provisions of Section 121 and, with regard to the case to which the learned Sub-Divisional Magistrate has referred, it seems to me that it is no authority for the proposition which the Sub Divisional Magistrate has enunciated and which I have just read. The proposition seems to me to be based upon a passage at page 367. In that case the landlord bad distrained not only for rent but also for damages: and, this Court held that the distraint was bad, amongst other reasons, on account of the fact that it was a distraint for damages. Then the learned Judges said: 'He (the landlord) was only entitled to distrain for the rent of the holding in the preceding agricultural year (not for the rent of the 'current year,' as the District Judge says, but for the rent of the holding for the year preceding the current year) and, under Clause (d) to Section 122 he was also entitled to distrain for the interest due upon that amount, if he chose to claim any.' As I understand that passage, the learned Judges were referring to the particular facts of that ease. Apparently the rent in respect of which the landlord was entitled to distrain had been described by the District Judge as rent for the current year, which in the opinion of the learned Judges on the facts of that case was a mistake and ought to have been described as rent of the holding in the preceding agricultural year. There is nothing in that case to show that the rent for the preceding agricultural year had become due more than a year before the order of attachment was made: and, as I understand the case, it is not an authority for the proposition which has been stated by the learned Sub-Divisional Magistrate. In my judgment, therefore, the decision is wrong and must be set aside. The appeal must be allowed and the case must go back to the Sub-Divisional Magistrate for adjudication upon the merits of the case.

Mookerjee, J.

3. I agree.


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