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Rajani Kanta Pal Vs. Kedar Nath Biswas and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in47Ind.Cas.190
AppellantRajani Kanta Pal
RespondentKedar Nath Biswas and ors.
Excerpt:
civil procedure code (act v of 1908), section 115 - revision--error of law, whether ground for interference--remedies, other, open to petitioner, effect of. - .....a money decree. this application he purported to make under the provisions of section 47 of the code of civil procedure. there appears to be no controversy that the decree-holder is in fact the landlord and there also appears to be no controversy that the rent for the period in suit was in fact due, the landlord having apparently refused to receive rent from the petitioner and the petitioner having taken no action under section 61 of the bengal tenancy act or otherwise in order to secure that payment should be duly made. in this state of facts the learned subordinate judge held that the application made by the petitioner before us, though it purported to be one under section 47 of the code, was 4n fact one made under the provisions or falling under the provisions of order xxi, rule.....
Judgment:

1. In this case it appears that in execution of a money decree obtained by a third party as against the tenant of a certain holding or tenure, that tenure or holding was sold to the present petitioner on the 13th November 1913. The landlord has refused to recognise the purchaser as a tenant, on the ground that the holding is in fact a nontransferable occupancy holding. The petitioner-purchaser's contention is that this is a permanent under tenure and, therefore, transferable. In the year 1917 to recover rents that had accrued due after the sale to the present petitioner in November 1913 the landlord brought a suit against his old tenant and obtained a decree ex parte. In execution of that decree he now seeks to have the property sold. The present petitioner preferred an objection to the executing Court contending that though the decree was in form a rent-decree, yet by reason of the fact that it had been brought against a person who had no present interest in the tenancy it was merely a money decree. This application he purported to make under the provisions of Section 47 of the Code of Civil Procedure. There appears to be no controversy that the decree-holder is in fact the landlord and there also appears to be no controversy that the rent for the period in suit was in fact due, the landlord having apparently refused to receive rent from the petitioner and the petitioner having taken no action under Section 61 of the Bengal Tenancy Act or otherwise in order to secure that payment should be duly made. In this state of facts the learned Subordinate Judge held that the application made by the petitioner before us, though it purported to be one under Section 47 of the Code, was 4n fact one made under the provisions or falling under the provisions of Order XXI, Rule 58. Having regard, therefore, to the provisions of Section 170, Bengal Tenancy Act, he held that the claim could not be entertained and he, therefore, dismissed the application.

2. We are asked to revise his order under the provisions of Section 115, Civil Procedure Code. Now it is apparent that the petitioner before us has other remedies by suit or otherwise, and it is also fairly clear that if on the facts we have set but the learned Subordinate Judge committed any error in holding that Order XXI, Rule 52, Civil Procedure Code, did not apply, he at most committed an error of law which is not sufficient to call for our intervention under the provisions of Section 115, Civil Procedure Code. We, therefore, discharge this Rule with costs, two gold mohurs.


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