BONBEHARI ROY Vs. DHIRENDRA NATH ROY

JUDGEMENT

(1.) This appeal is directed against an order dismissing an objection taken by the judgment debtor under Section 47, Civil P. C. against the execution of a decree passed by the Jessore Court and transferred to the Court of First Subordinate Judge, Alipore for execution. The respondent who was & zamindar obtained a decree from the Jessore Court for the recovery of putni rent of a state included in Jessore Collectorate against a number of puttanidars including the appellant. On 21-5-1946 the decree was transferred to Alipore Court for execution. "On 31-5-1946 the decree-holder started execution against 6 judgment debtors but not against the appellant by filing a tabular statement in the Court of the said Subordinate Judge at Alipore. This was numbered as Misc. Case No. 15 of 1946. The proceedings against the said 6 judgment debtors were, however, compromised and two solenamas dated 11 and 18-7-1949 were filed recording the said compromise. After having finished with the said 6 judgment-debtors, the decree-holder intended to proceed against the judgment debtor No. 1 the present appellant and with that object the decree holder filed a petition on 25-7-1949 before the said Subordinate Judge stating that he wished to proceed in Misc. Case No. 15 of 1946 against the judgment debtor No. 1 and asked for attachment and sale of certain properties belonging to the said judgment debtor No. 1 as set out in the Schedule. It was not a fresh application under Order 21 B. 2, Civil P. C. but was an application in the said execution case being Misc. Case No. 15 of 1946. The learned Subordinate Judge overruled all the objections and granted the relief prayed for by the decree-holder. Against that order an appeal was taken to this Court being F. M. A. No. 38 of 1950. The appeal was heard by a Division Bench of this Court consisting of Sen and Chunder JJ. Their Lordships dismissed the appeal on 20-2-1051 with the following observations:- "We treat the application of the respondents for relief against appellant as a prayer for amendment of the execution petition filed in Misc Case No. 15 of 1946 and we see no reason why we should refuse to allow the execution petition to be so amended. The respondent shall amend his petition for execution in Misc. Case No. 15 of 1946 by adding the name of the judgment debtor No. 1 in the appropriate column & by stating the manner in which execution should be levied against him in the appropriate column." Thereupon on the petition of the decree holder, the original tabular statement filed on 31-5-1948 was amended by the order of the learned Subordinate Judge dated 7-6-1951 whereby the name of judgment debtor No. 1 was included In the 9th column of the tabular statement and the 11th column was also amended by adding a prayer for attachment and sale of properties belonging to judgment debtor No. 1.

(2.) In 1950 East Bengal State Acquisition and Tenancy Act, 1950 was passed whereby the Government of East Pakistan purported to acquire all zamindaries. Under the Act not merely the zamindary but all arrears of rent due to the zamindars including decrees obtained therefor vested in the State. The decree sought to be executed being a decree for the recovery of patni rent of a estate situate in Touzi No. 243 of Jessore Collectorate would prima facie be hit by the mischief of the Act. Thereupon the judgment debtor No, 1 filed a petition under Section 47, Civil P. C. in the pending execution case contending that by reason of the East Bengal State Acquisition and Tenancy Act, 1950 the decree is no longer executable at the instance of the decree-holder. The learned Subordinate Judge dismissed the application on the finding that the decree In execution could not have vested in the Government of East Pakistan. Against this order of dismissal the present appeal has been filed by judgment debtor No. 1 Bonbehary Roy.

(3.) Mr. Hemendra Chandra Sen the learned Advocate appearing for the respondent decree-holder concedes that decree in execution would vest in the Pakistan Government under the Act, if the execution proceeding was pending anywhere in East Pakistan. But he contended that after the creation of two Dominions by the Indian Independence Act, the present execution case was pending in a court of the Indian Union and the East Bengal Legislature has no extra territorial Jurisdiction to legislate on property which is now situate in Indian Union belonging to a citizen of the Indian Union. The right given by the Indian Independence Act and/or the orders passed by the Governor-General thereunder cannot be affected by the Unilateral Act of one Dominion. The right of property in the decree and the right to execute the decree transferred to this Court for execution remains therefore, unaffected by the East Bengal Act above referred to. Mr. Apurba Charan Mukherjee the learned Advocate appearing for the appellant though originally attempted to argue that the decree-holder is divested of his right to execute the decree gave up the point ultimately and did not dispute the above contention of Mr. Sen. By reason of the attitude taken by Mr. Mukherjee the point of dispute before us has been narrowed down.