AMULYA CHANDRA ROY Vs. PASHUPATI NATH

JUDGEMENT

(1.) This Reference to a F. B. has arisen out of a proceeding in execution of a decree passed in a suit for arrears of rent of a tenure which were initiated & continued in accordance with the provisions of chap. XIII, Bengal Tenancy Act.

(2.) The decree for rent was passed in 1936. This decree was executed by the applts. by the arrest of judgment-debtors. The judgment-debtors filed a petn. of objection under Section 47, C. P. C. on the ground that they are not liable to arrest as they are not possessed of sufficient means to pay the amount of the decree. The Subordinate Judge, Asansol, overruled the objection filed by the judgment-debtors & directed the judgment-debtors to pay the dues of the decree-holders within two weeks failing which a writ for arrest was directed to be issued. The judgment, debtors preferred an appeal to the Ct. of the Dist. J. The appeal was allowed & the prayer for arrest of the judgment-debtors was refused. Against the order of the Dist. J. the decree-holders preferred an appeal from an appellate order to this Ct. This appeal was heard by Sen & Chunder JJ on 28-6-1950. The learned Judges were of opinion that there was a conflict of opinion between Bench decisions of this Ct. on the question whether the properties which are exempt from attachment & sale in execution of a decree for arrears of rent by virtue of Section 168A, Bengal Tenancy Act, should be left out of consideration in calculating the means of the judgment-debtor for the purposes of Section 61, proviso (b), C. P. C. This question was accordingly referred to a F. B. As the question arose in an appeal from an appellate order their Lordships referred the whole appeal for final decision to the F. B.

(3.) I shall first deal with the question which has been referred to the F. B. Section 51, C. P. C. prescribes the procedure in execution of a decree. The section lays down that the Ct. may order execution of a decree in the modes stated in Clauses (a) to (e) which are as follows :