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Sarat Chandra Ghose, Common Manager to the Estate of Beni Lal Chukerbutty and ors. Vs. Raj Kumar Chakravarty and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in82Ind.Cas.327
AppellantSarat Chandra Ghose, Common Manager to the Estate of Beni Lal Chukerbutty and ors.
RespondentRaj Kumar Chakravarty and ors.
Cases ReferredBeni Madhab v. Upendra Chandra
Excerpt:
bengal tenancy act (viii of 1885), sections 95, 98 and 100 - common manager--suit for rent--execution of decree--previous sanction of district judge, whether necessary. - .....did not obtain the previous sanction of the district judge to execute the decree against the common manager, the sale held in execution thereof was a nullity, it being contended that the powers of a common manager are analogous to those of a receiver and that the same procedure applies. this argument was advanced in the courts below and was, we think, rightly rejected. sections 93 to 100 of the bengal tenancy act relate to the appointment of common manager, and there is no provision which requires the previous sanction of the district judge to be obtained to bring a suit for rent against a common manager or to execute a decree obtained in such suit. if it had been the intention of the legislature to require such sanction it may be presumed that it would have been plainly expressed......
Judgment:

1. This appeal is directed against the judgment of the Additional Subordinate Judge of Backergunj confirming an order of the Munsif, Second Court, Patuakhali, dismissing an application for setting aside a sale.

2. The only point which has been urged before us on behalf of the appellant is that, inasmuch as the decree-holders did not obtain the previous sanction of the District Judge to execute the decree against the Common Manager, the sale held in execution thereof was a nullity, it being contended that the powers of a Common Manager are analogous to those of a Receiver and that the same procedure applies. This argument was advanced in the Courts below and was, we think, rightly rejected. Sections 93 to 100 of the Bengal Tenancy Act relate to the appointment of Common Manager, and there is no provision which requires the previous sanction of the District Judge to be obtained to bring a suit for rent against a Common Manager or to execute a decree obtained in such suit. If it had been the intention of the Legislature to require such sanction it may be presumed that it would have been plainly expressed. We cannot read into the Act something which is not to be found there.

3. The learned Vakil for the appellants was constrained to admit that he could not find any authority exactly in point in support of his proposition, but he relied upon the case of Nabo Kishore Mandal v. Atul Chandra Chattarjee 16 Ind Cas. 193 : 40 C. 150 : 17 C.W.N. 846 where it was laid down that a suit for accounts against a Common Manager requires the previous sanction of the District Judge. In the course of the judgment in that case it is said: 'The manager is, in our opinion, so far as he holds his office and performs his duties under the provisions of the Act, in a position analogous to that of a Receiver appointed by the Court under the provisions of Order XL, r., 1 of the Civil Procedure Code, and is in our opinion entitled to the same protection, for the period during which he exercises his duties within the powers given to him by the Act, as a Receiver appointed by a Civil Court'. In the suit for accounts the object was to re-open the accounts filed:by the Common Manager from time to time before the District Judge, objections to which had been actually made before and disposed of by the District Judge, and it was, therefore, held that as regards items which in the ordinary course of the management ought to have appeared in the account and which the party was aware at the time were not included in the account, or with due enquiry might have discovered were not included in the account no suit would lie without sanction. The other case in which a similar opinion was expressed is Beni Madhab v. Upendra Chandra 53 Ind. Cas. 747 : 30 C.L.J. 279 : 24 C.W.N. 138 which was also an account suit, and the question related to the institution of such a suit.

4. We are here, however, dealing not with an account suit but with an execution proceeding, arising out of a rent-suit. In an account suit there are special reasons why such sanction is necessary. Those reasons do not exist, the decree being merely against, the estate of the Common Manager in his capacity as such, and not involving him in any personal capacity. Furthermore, it is to be observed that the decree out of which the execution proceedings arose was passed against the Common Manager and the Execution Court could not go behind the decree but was bound to execute it.

5. In our judgment, therefore, the Courts below rightly refused to set aside the sale. The appeal fails and must be dismissed with costs. We assess the hearing-fee at two gold mohurs.


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