RADHA MOHAN BAGCHI Vs. NALINI KANTA ADHIKARY

JUDGEMENT

(1.) IN Rent suit No. 7 of 1955, Nalini Kanta Adhikary, the decree-holder respondent, obtained a decree for arrears of rent against one Lalit Mohan Bagchi, whose heirs and legal representatives are the present appellants. The decree is dated the 22nd. November, 1945. Out of a total claim of Rs. 12,992-5-9, a sum of Rs. 10,995-13-9 was decreed and a further sum of Rs. 1095-10-0 was decreed as costs; total sum decreed being Rs. 12,091-7-9. Between the years 1948 and 1954, the decree was put to execution several times and various sums of money were realised in part satisfaction of the decree. On the 22nd. July 1955, the decree-holder respondent started Rent Execution case No. 2 of 1955, out of which the present appeal arises, for realisation of a sum of Rs. 4335-11-0, being the balance due under the decree. Prior to the filing of Rent Execution case No. 2 of 1955, the West Bengal Estates Acquisition Act 1 of 1954 had come into operation and the defaulting tenure vested in the State Government on and from the 15th. April 1955. In-as-much as the defaulting tenure (in the instant case a Darpatni) could no longer be proceeded against, on account of its vesting in the State Government, the decree-holder respondent prayed for attachment and sale of other properties belonging to judgment-debtors as indicated in column 11 of the application for execution of the decree.

(2.) ON the 8th. October 1955, the judgment-debtors appellants filed an objection under section 47 of the Code of Civil Procedure in the Rent Execution case above referred to. Their objection in substance was that section 168a of the Bengal Tenancy Act was a bar to the execution of the decree against the other properties of the judgment-debtor and also that the remedy of the decree-holder was to realise his dues out of the compensation payable under the provisions of the West Bengal Estates Acquisition Act, in respect of the defaulting Dar-patani. The objection was registered as Misc. case No. 130 of 1955.

(3.) BY an order, dated the 10th September, 1956 the executing court overruled the objection under section 47, C. P. C. preferred by the judgment debtors appellants and dismissed the application. The reason given by the court below in overruling the objection is quoted below: