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Hem Chandra Chowdhury Vs. Chandra Mohan Namodas and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in60Ind.Cas.204
AppellantHem Chandra Chowdhury
RespondentChandra Mohan Namodas and ors.
Cases ReferredKalipada Sirkar v. Harimohan Dalal
Excerpt:
bengal tenancy act (viii of 1885,), as amended by eastern bengal and assam tenancy amendment act (i of 1808), section 147-a - decree passed without compliance with provisions of section, whether can be objected to, in execution proceedings--compromise decree in rent suit--tenant taking settlement of additional lands and agreeing to pay rent for the entire land--decree, validity of, whether can be questioned in execution proceedings. - .....passed in accordance with a compromise in contravention of the provisions of section 147-a of the bengal tenancy act, i.e., without recording evidence to show what the amount of rent was before the dispute arose, is made without jurisdiction, and the tenant is not bound to have it set aside.5. it is contended on behalf of the appellant, first, that the non-compliance with the provisions of section 147-a (clause 3) does not render the decree a nullity though a decree passed in contravention of the section may be set aside by proper proceedings being taken in that behalf; and secondly, that the present case is distinguishable from the case reported in sarug saran lal v. dukhit mahto ind. cas. 809 : 17 c.w.n. 496.6. the question whether anon compliance with a particular provision of the.....
Judgment:

1. This appeal arises out of proceedings in execution of a decree for rent.

2. It appears that the plaintiff decree holder claimed rent (in the awl) at the rate of Rs. 22 while the tenant pleaded that the rent of the holding was Rs. 13. The parties then settled the case; the defendants-took some additional lands, and for the entire land (the original area and the additional land) the rent was fixed at Rs. 22 per year. A decree was phased upon the compromise, but the Court did not comply with the provisions of Section 147-A of the Eastern Bengal and Assam Tenancy Act.

3. The decree-holder having applied for, the execution of the decree, the judgment debtor raised objection to the execution on the ground that the provisions of Section 147-A not having been complied with, the decree was incapable of execution. The decree-holder has appealed to this Court.

4. The Court below relied upon the case of Sarjug Saran Lal v. Dukhit Mahto 18 Ind. Cas. 809 : 17 C.W.N. 496, in support of the view taken by it. That case lays down that the decree for rent passed in accordance with a compromise in contravention of the provisions of Section 147-A of the Bengal Tenancy Act, i.e., without recording evidence to show what the amount of rent was before the dispute arose, is made without jurisdiction, and the tenant is not bound to have it set aside.

5. It is contended on behalf of the appellant, first, that the non-compliance with the provisions of Section 147-A (Clause 3) does not render the decree a nullity though a decree passed in contravention of the section may be set aside by proper proceedings being taken in that behalf; and secondly, that the present case is distinguishable from the case reported in Sarug Saran Lal v. Dukhit Mahto Ind. Cas. 809 : 17 C.W.N. 496.

6. The question whether anon compliance with a particular provision of the law constitutes an irregularity, or renders an order a nullity, has been considered in the resent Fall Bench decision in the case of Hridyanath Roy v. Ram Chandra Barua 58 Ind. Cas. 806 : 24 C.W.N. 723 : 31 C.L.J. 482. It is necessary, however, to discuss how far (if any) the principle laid down by the Full Bench affects the decision in the case of Sarjug Saran Lal v. Dukhit Mahto 18 Ind. Cas. 809 : 17 C.W.N. 496, because we think that the present case is distinguishable from that case. In the first place, the compromise in that case settled the rent payable for the land held by the tenant, and the Court did not consider the question whether the effect of the compromise would be to enhance the rent in a manner or to an extent not allowed by Section 29 in the case of a contract. in the present case, the compromise fixed the rent of the land originally held, together with the additional land which the tenant was to bold under the compromise. It could not be said that there was an enhancement of the rent previously paid by the tenant when the holding: in respect of which the rent was settled by the compromise, comprised additional lands. Although the Eastern Bengal and Assam Tenancy Act lays down (and the provision is similar to that contained in the Bengal Tenancy Act) that the Court shall not pass a decree in accordance with the compromise unless it is satisfied for reasons to be recorded in writing that the time of the agreement or compromise are such that, embodied in a contract they could be enforced under the Act, the compromise in the present case, as stated above, fixed the rent of the lands originally held together with some additional lands. In the next place, that case was one under the Bengal Tenancy Act, Section 147-A, Sub-section (3) of which provides that the Court shall record evidence in order to ascertain whether the effect of the compromise would be to enhance the rent in contravention of the provisions of Section 29 of the Act whereas the present case is governed by the Eastern Bengal and Assam Tenancy Act which does not contain any provision for recording evidence. Lastly, the objection to the validity of the decree has been raised in the present case in execution of the decree. In the case of Kalipada Sirkar v. Harimohan Dalal 35 Ind. Cas. 856 : 44 C. 627 : 24 C.L.J. 375 : 21 C.W.N. 1104, it was held that the Court executing the decree must take the decree as it stands and has no power to go behind the decree or entertain an objection to the legality or correctness of the decree. In that case the decree was passed against a lunatic who was not represented in the suit by a legal guardian and although a Court is not competent to make an operative decree against a person not a party to the suit or properly represented on the record, it was held that such a decree cannot be impeached in execution, but should be annulled or reversed in some direct proceeding taken for that purpose.

7. For all these reasons, we think that the present case may be distinguished from the case reported as Sarjug Satan Lal V. Dukhit Mahto 18 Ind. Cas. 809 : 17 C.W.N. 496, and that the objection raised to the validity of the decree cannot; be entertained in execution proceedings, The result is that the orders of the Court below are set aside, and the case sent back to the Court of first instance in order that execution proceedings us by be carried on. We make no order as to costs.

8. This judgment will govern the other case (Appeal from Order No, 253 of 1919).


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