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Alok Chand Pal and ors. Vs. Jaluram Namasut and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in45Ind.Cas.762
AppellantAlok Chand Pal and ors.
RespondentJaluram Namasut and ors.
Excerpt:
bengal landlord and tenant procedure act (viii of 1869), sections 59, 64, 65--non-transferable holding, whether can be sold in execution of decree for rent in district of sylhet. - 1. this appeal arises out of an application for execution of a rent decree by attachment and sale of the holding. in the courts below the case was treated practically as one falling under the provisions of the bengal tenancy act, and the learned district judge held that the holding not being transferable and the decree in his view being one not for rent but for money, neither the whole of the holding nor the 8-annas share therein, that is to say, the share corresponding with the share of the executing decree-holder could be sold. but the case comes from the district of sylhet and is, therefore, governed by the provisions of bengal act viii of 1869. whether it is, as the district judge supposed, a decree merely for the co-sharer landlord's share of the rent, or a decree for the whole rent.....
Judgment:

1. This appeal arises out of an application for execution of a rent decree by attachment and sale of the holding. In the Courts below the case was treated practically as one falling under the provisions of the Bengal Tenancy Act, and the learned District Judge held that the holding not being transferable and the decree in his view being one not for rent but for money, neither the whole of the holding nor the 8-annas share therein, that is to say, the share corresponding with the share of the executing decree-holder could be sold. But the case comes from the District of Sylhet and is, therefore, governed by the provisions of Bengal Act VIII of 1869. Whether it is, as the District Judge supposed, a decree merely for the co-sharer landlord's share of the rent, or a decree for the whole rent due on the holding, it must be dealt with under the provisions of the Act which we have just cited. In the suit brought by the co-sharer landlord to which all hia co-sharers, it appears, were parties, there was no prayer and therefore, no order for ejeoiment. The holding is admittedly not transferable and it would; therefore, seem that it cannot be sold under the provisions of either Section 59 or Section 64 of the Act. Section 65 of the Act requires that in the first instance execution should be taken out against the person or moveable properly of the debtor and thereafter against his immoveable property, if any. If satisfaction cannot be obtained in the manner indicated in Section 65 the unexecuted decree may, it appears, become the basis of a suit for ejectment under the provisions of Section 52. Whatever may be the proper course open to the decree-holder landlord, it is clear that he cannot in the present proceeding at least obtain satisfaction of his decree by attachment and sale of this nontransferable holding.

2. For these reasons we dismiss this appeal with costs. We assess the hearing fee at one gold mohur.

3. The connected Rule No. 343 of 1917 is discharged. We make no order as to costs in the Rule.

4. Appeal dismissed;


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