AHIDHAR GHOSE Vs. JAGABANDHU ROY

JUDGEMENT

(1.) This is the judgment-debtor's appeal against an order of the learned Subordinate Judge, 3rd Court, Alipore, rejecting his objections under section 47, Civil P. C. The material facts are not in dispute but the appellant contends that the learned Subordinate Judge has erred in law in his interpretation and application of para. 4, Indian Independence (Legal Proceedings) Order, 1947, and section 168A, Bengal Tenancy Act.

(2.) Under the zemindar-respondent the appellant holds a Patni in respect of lands which lie partly within the Indian Union and partly within Pakistan. The annual jama is Rs. 3760-11-0 and the Patni was created under a kabuliyat, executed on 20th chaitra 1319 B. section and registered on 4-4-1913. There being default in the payment of the Patni rent and the usual cesses for the period 1351 B. S. to 1354 B. S., the landlord (respondent) instituted R. S. No. 22 of 1947 against the appellant in the 3rd Court of the Subordinate Judge at Alipore. The suit was instituted on 29-7-1947 and it ended in a compromise decree on 11-6-1948 for a sum of Rs. 16,183-12-4, payable in four annual kists or . instalments as follows: <FRM>JUDGEMENT_846_AIR(CAL)_1952Html1.htm</FRM> The decree provided inter alia that:in case of default of payment of any of the above kists the entire decretal amount, then outstanding, would be realisable by the attachment and sale of the property in default. The first instalment was paid and accepted by the landlord decree-holder but then a default occurred in regard to the second instalment, payable in chaitra 1356 B. S., and, on 28-9-1950, the respondent landlord applied for execution of the decree and realisation of his outstanding dues, viz. Rs. 12,100 (including interest) "by sale of the property in default" or, to be precise, by the sale of that part of the said property which lay within the Indian Union-and, admittedly also, within the jurisdiction of the Alipore Court - and which was described in Sch. (Ga) of the application for execution, the Pakistan part of the defaulting Patni being described in Sch. (Kha) and the whole Patni-that is, its entire lands in the Indian Union and Pakistan-being described in Sch. (Ka). After the necessary preliminaries the decree-holder filed the concise statement under section 163, B. T. Act on 30-11-1950 but on that day the judgment-debtor appeared and opposed the decree-holder's prayer for execution and took time for filing objection. On a subsequent date a petition of objection was filed by the tenant-judgment-debtor objecting to the execution of the decree and the principal objections, raised therein, were (1) that, as the lands of the Patni were partly "within the Dominion of Eastern Pakistan", the Alipore Court had no jurisdiction to pass the decree (2) that, in any event, the decree was not executable in law as the property involved lay partly in Pakistan and (3) that, apart from all other objections, the decree-holder's prayer for execution against a part of the Patni tenure could not proceed in view of section 168A, Bengal Tenancy Act. These objections did not succeed before the learned Subordinate Judge and hence the present appeal by the tenant-judgment-debtor.

(3.) In our opinion, the Court below was right in rejecting the tenant's objections. The suit for rent was, as already stated, filed in the Alipore Court on 29-7-1947 and it was decreed on 11-6-1948. On the appointed day, therefore, namely, the 15-8-1947 the suit was pending and the Alipore Court had clearly full jurisdiction under para. 4(1), Indian Independence (Legal Proceedings) Order, 1947 to pass a decree in that suit, no matter that, on and from 15-8-1947, a part of the suit lands became included in the new Dominion of Pakistan. The decree, therefore, that was passed on 11-6-1948 was a perfectly valid decree and the judgment-debtor's first objection, enumerated above, must fail.