AMARENDRA LAL KHAN Vs. KUMAR KRISHNA MUKHERJI

JUDGEMENT

(1.) This is an appeal by a tenant judgment-debtor objecting under Section 47 of the Code of Civil Procedure to the execution of a decree for arrears of rent obtained by the landlord decree-holder.

(2.) The facts are that the landlord instituted a suit for arrears of rent for the years 1348 to 1361 B.S. which was numbered as Rent Suit No. 1178 of 1945. It happened that before the institution of this suit the Collector issued a notification, dated March 19, 1945, attaching under Section 99 of the Cess Act the mehal in which the rent lands are situate. The finding of both the courts is that the actual publication and attachment took place some time before July 17, 1945, and after the institution of the rent-suit itself. After the publication and attachment had been effected under Section 99 of Cess Act the suit was heard and a decree was passed on October 1, 1945. This decree has been put into execution. The judgment-debtor tenant objected that the decree was a nullity, as the court could not pass a decree in view of the action taken by the Collector under Section 99 of the Cess Act. In the present case, as the suit was filed before the' actual publication of the notice and as in cases of this nature the landlord is entitled to bring a suit the suit was properly filed. But after the publication of the notice under Section 99 of the Cess Act the court could not pass a decree for the amount claimed as under Section 99 of the Cess Act any payment after the publication of the notice to any one except the Collector and any person authorised by him would be null and void... The court, therefore, had. no jurisdiction to pass the decree. The decree being a nullity could be challenged either in appeal or in execution and it has now been so challenged in execution. Though the decree is a nullity, it must be made clear that the suit remains pending because the court could not pass the decree and dispose of the suit till the Collector had released - the mehal from attachment under Section 99 of the Cess Act. This view taken by me finds support from a decision of a Divisional Bench of this Court in the case of Manindra Chandra Roy Chowdhury v. Gopi Ballav Sen,1940 45 CalWN 44, with which I respectfully agree.

(3.) The appeal is therefore allowed. The orders of the courts below in execution are set aside and the objection to execution is allowed and it is held that the decree is a nullity and the suit still remains pending and the Plaintiff-landlord can take such steps in the suit as he may be advised after the Collector releases the meluil from attachment.