UDAYCHAND MAHATAB Vs. GOPINATH REJA

JUDGEMENT

(1.) This is an appeal by the decree-holder under Clause 15, Letters Patent, against the judgment of Roxburgh J. affirming the orders made by the court below dismissing the appellant's application for execution as prayed for.

(2.) The facts are not in controversy and may be stated as follows: The respondents held a putni tenure under the appellant. The rent of the putni having fallen into arrears, the appellant landlord obtained a decree for arrears of rent on 17-7-1939. This decree was executed on 7-3-1941, the prayer in the execution petition being a sale of the tenure in arrears. Thereafter the proceedings in execution were stayed on receipt of a notice from the Debt Settlement Board, at the instance of the judgment-debtors. The order for stay made by the Board was ultimately vacated. On 4-6-1946, the appellant made an application for amendment of the execution petition. In the amendment petition, the decree-holder stated that the tenure in arrear had been sold in an intermediate rent execution and that it was necessary to proceed with the execution by a sale of other properties of the judgment-debtors. The decree-holder accordingly prayed for proceeding with the execution proceedings initiated on 7-3-1941. On this application, the trial court by Order No. 8 dated 2-7-1946 directed that the execution petition be amended and the execution do proceed as prayed for. It was further directed that the notice under Order 21, Rule 22, Civil P.C. do issue on the judgment-debtors. On receipt of this notice some of the judgment-debtors filed an objection under Section 47, Civil P.C. on the ground that the execution proceedings as laid were not available to the landlord decree-holder in view of the provisions of Section 168 A, Bengal Tenancy Act.

(3.) Before I deal with the validity or otherwise of this objection I may refer to an intermediate execution which was initiated by the landlord decree-holder. It appears that for a period subsequent to that covered by the decree which is now under execution, rent of the putni again fell into arrears and the landlord obtained another decree for rent on the 11-6-1942. This decree was executed and the putni tenure in arrear was brought to sale on the 21-1-1946, and the sale was confirmed on the 25-2-1946.