KUMAR KRISHNA MUKHERJEE Vs. AMARENDRA LAL KHAN

JUDGEMENT

(1.) This is the decree-holder's appeal arising out of a proceeding under Section 47 of the Code of Civil Procedure. The decree under execution was passed in Rent Suit No. 4 of 1941 of the court of the First Subordinate Judge, Midnapore. The date of the decree is August 13, 1941. Prior to the present execution, it was sought to be enforced on six occasions, namely, in rent execution cases Nos. 3 of 1942, 8 of 1942, 1 of 1944, 7 of 1948, 7 of 1951 and 1 of 1953. But all those attempts of the decree-holder were unsuccessful and no part of the decretal dues was realised. On August 10, 1903, the present execution case No. 8 of 1953 was filed. It was within twelve years of the date of the decree and the prayer made in it, was for attachment and sale of other properties of the judgment-debtor than the defaulting tenure. Objection was taken to this execution on the grounds inter alia that the execution was barred by limitation and that it was also barred under Section 168A of the Bengal Tenancy Act.

(2.) On the question of limitation, the learned Subordinate Judge found in favour of the decree-holder and there can be no doubt that his decision on the point is right. The present execution case was admittedly filed within twelve years of the date of the decree and also within three years of the disposal of the last execution case which was also of the same year, namely, 1953. No question of limitation can, therefore, arise so far as the present execution case is concerned.

(3.) On Section 168A of the Bengal Tenancy Act, the decree-holder came forward with the plea that the tauzi, under which the defaulting tenure lay, had been attached by the Collector under Section 99 of the Cess Act, and, accordingly, rents of the under tenants were payable to the Collector and would not be payable to the purchaser of the putni in the event of a sale in execution of the decree and so, contended the decree-holder, the defaulting putni was unavailable for sale. On this plea, he sought to evade the bar of Section 168A to the present execution case against the other properties of the judgment-debtor. The decree-holder's plea was overruled by the learned Subordinate Judge as, in his view, Section 168A would apply and bar the execution unless the case could be brought under the proviso of Sub-section (1) of that section and attachment under Section 99 of the Cess Act was not enough for the purpose. The proviso requires that in order that it may be attracted and the decree-holder be entitled to proceed against the other properties of. the judgment-debtor than the defaulting tenure, the term of the tenancy must have expired in some manner other than by surrender before an application is made for the execution of the decree. The learned Subordinate Judge has held that merely because the superior touzi had been attached and the putnidar was unable or disentitled to realise any rent from the tenants under the putni and such rents were to be paid to the Collector under the attachment, the term of the putni cannot be said to have expired. The putni still subsists and, accordingly, the proviso cannot be attracted. In our opinion, this view is entirely correct. The attachment under Section 99 may, for some period, disentitle the putnidar or any person who might purchase the putni-tenuis in execution of the present decree from realising rents from the tenants under the putni or from receiving the profits thereof, but it does not certainly mean extinguishment of the putni or the expiry of its term so as to bring the case within the proviso which requires that the term of the tenancy must have expired. In this view, the decision of the learned Subordinate Judge should be affirmed.