LABPUR ZEMINDARIES LIMITED Vs. DEBENDRANATH RAIMAHASHAYA

JUDGEMENT

(1.) This appeal arises out of a proceeding under Section 47 of the Code of Civil Procedure, read with Section 168A of the Bengal Tenancy Act.

(2.) The Appellants as landlords instituted Rent Suit No. 1621 of 1942 on April 15, 1942, for recovery of arrears of rent for the years 1345 and 1346 B.S. in respect of the holding, comprised in Khatiyan No. 422 of Mauza Purbasthali, district Burdwan, held by the Respondents' predecessors under them. Before the date of institution of the suit, the rents of the said holding for the years 1347 and 1348 B.S. had also become due and payable on April 14, 1942, corresponding to Baisakh 1, 1349 B.S. The Appellants, however, reserved their right to institute a suit for these arrears of 1347 and 1348 B.S. under Section 147(5) of the Bengal Tenancy Act and sanction or permission to that effect was given by the court. Rent Suit No. 1621 of 1942 was decreed on February 8, 1943. The decree was first put into execution in Rent Execution Case No. 1530 of 1944 on November 17, 1944, but, on objection being taken by the judgment-debtors as to its maintainability on certain grounds, it was dismissed as not maintainable in law on March 27, 1945. Thereafter, the decree holders put the said decree into execution over again in Rent Execution Case No. 607 of 1945 on June 9, 1945, and, in this! execution, the holding in suit comprised in Khatiyan No. 422 was sold and purchased by the decree-holders and the sale was; confirmed on November 28, 1945. In the meantime, on April 14, 1945, the decree-holders had instituted Rent Suit No. 396 of 1945 for the reserved arrears of 1347 and 1348 B.S. in respect of the above holding (Khatiyan No. 422) and the said suit; ended in a decree on June 13, 1945. On May 24, 1948, this second decree, viz., for the rents of 1347 and 1348 B.S. was put into execution against "other properties" of the judgment debtors (Khatiyans Nos. 839 to 844 of Mouza Purbasthali) in Rent Execution Case No. 465 of 1948. These properties were eventually sold in the said Execution Case and purchased by the decree-holders themselves on December 10, 1948, and, thereafter, on January 10, 1949, the judgment-debtors made two applications one under Section 47 of the Code of Civil Procedure, read with Section 168A of the Bengal Tenancy Act, objecting to the validity of the execution against the said "other properties" of the judgment-debtors and giving rice to Misc. Case No. 12 of 1949 which is the subject matter of the present appeal and the other under Order XXI Rule 90 of the Code of Civil Procedure for the setting aside of the sale, held on December 10, 1948, as aforesaid, and registered as Misc. Case No. 11 of 1949. Of these applications, the former, viz., the objection to the execution proceedings under Section 47 of the Code of Civil Procedure, read with Section 168A of the Bengal Tenancy Act, was first taken tip by the learned Munsif and he held that the execution in the present case was in contravention of the said Section 168A of the Bengal Tenancy Act. He, accordingly, by his order, dated April 20, 1949, allowed the Misc. Case No. 12 of 1949, set aside the sale and struck off the execution proceedings as not maintainable. The other application, viz that for setting aside the sale under Order XXI, Rule 90 of the Code of Civil Procedure (Misc. Case No. 11 of 1949) was then put up for orders on April 23, 1949, and, as neither party appeared on that date and no steps were taken, this Misc. Case was dismissed for default. The decree-holders appealed to the lower appellate Court from the decision of the learned Munsif, dated April 20, 1949, allowing the judgment-debtors' application under Section 47 of the Code of Civil Procedure, read with Section 168A of the Bengal Tenancy Act, and setting aside the sale and striking off their execution case. The learned Subordinate Judge, however, who heard this appeal, agreed with the larned Munsif that the said execution case clearly contravened Section 168A of the Bengal Tenancy Act and, in that view of the matter, he affirmed he learned Munsif's decision and dismissed the decree-holders' appeal. From this appellate decision, the present Second Appeal has been preferred by the unsuccessful decree-holders.

(3.) Both the courts below have accepted the judgment-debtors' contention that, in view of Section 168A(i)(6) of the Bengal Tenancy let, it must be held, in the circumstances of this case, that the claim for arrears of rent for 1347 and 1348 B.S. and the decree, obtained therefore, must be deemed to have been satisfied by leason of the confirmation of the sale on November 28, 1945, and that, accordingly, the present execution for the said arrears would not be maintained. They appear further to have been of the opinion that, when the landlords had purchased the holding in arrears in execution of a decree for rent, no execution was permissible under Section 168A of the Bengal Tenancy Act for arrears of an earlier period. In my view, in the facts and circumstances of the present case, which I have sufficiently set out above, the decision of the two courts below cannot be supported.