NARESH CHANDRA BOSE Vs. BHUPENDRA NARAYAN SINHA

JUDGEMENT

(1.) THESE are three appeals arising out of three execution proceedings of the Court of the Subordinate Judge of Murshidabad. In two of them, there was an appeal to the District Judge who modified the order in execution of the Subordinate Judge and there are two second appeals against the District Judge's decision. The third is the First Miscellaneous Appeal against the order of the Subordinate Judge. The Raja Bahadur of Nashipur is the owner of a Touzi No. 1152/1. There is a patni under it of which the appellant Naresh Chandra Basu has a ten annas interest while the remaining six annas belong to the Maitras. Under the patni, the Raja Bahadur has another jote. The jote fell into arrears of rent. Rent suit No. 7 of 1933 was filed for arrears of rents from 1336 to 1339 B. S. This was decreed and an appeal was taken up to the High Court which upheld the decree on 28th May 1940. In the meantime Rent Execution case No. 42 of 1939 had been filed and the jote in arrears was sold and purchased by the decree -holder on 21st November 1941.

(2.) FOR the rent which fell due from 1340 to 1343 B. S. a rent suit had been filed in 1937 being Rent Suit No. 9 of 1937 and was decreed on 23rd December 1940 for the rent in arrears as also costs amounting to Rs. 453 -3 -0. Rent Execution Case No. 41 of 1943 was filed on 3rd July 1943. The prayers were for attachment and sale of other properties of the judgment debtor or in the alternative for arrest of the judgment -debtor. The judgment -debtor filed Miscellaneous Case No. 64 of 1943 alleging that as Naresh Chandra Basu, the appellant was only a part owner of the patni there has been no merger and therefore the jote being still in existence there could be no attachment and sale of other properties. This miscellaneous case was decided in favour of the Raja Bahadur. The decree -holder then prayed for the alternative mode of execution of arrest of judgment -debtor. The defence taken by the judgment debtor was that under Section 168A, Ben. Ten. Act, the rents subsequent to the period in suit in Kent Suit No. 7 of 1933, that is, rents for the year 1340 B. S. and subsequent years were no longer due, the decree -holder himself being the purchaser was to pay the same and could not realise it from the judgment debtor. This defence was taken in Miscellaneous case No. 91, of 1944. The Subordinate Judge decided that the decree could not be executed not only for the rent but also the costs etc., as in his view costs etc., were also included within rent. He therefore dismissed the entire execution petition. This has given rise to the First Miscellaneous Appeal No. 138 of 1945. In the meantime for the rent accrued due for 1344 to 1847 B. S., Rent Suit No. 8 of 1941 had been brought. It was decreed not only for the arrears of rent but also for costs amounting to Rs. 476 -6 -3. Rent Execution Case No. 31 of 1944 had been filed praying for attachment of a debt due to the judgment -debtor and arrest. The judgment -debtor had objected in Miscellaneous Case No. 131 of 1944 and the Sub -ordinate Judge had dismissed the execution application by the same judgment as in the previous miscellaneous case referred to on 17th March 1945. An appeal was taken against this to the Court of the District Judge being Miscel. laneous Appeal No. 35 of 1945 of the Court of the District Judge and the District Judge modified the order of the Subordinate Judge. This is the subject -matter of Second Miscellaneous Appeal No. 1 of 1946. There had been another decree for the amount of Rs. 175 8 0 for rent and RS. 20 4 o for costs in Rent Suit No. 8 of 1941 previously mentioned which had given rise to Rent Execution case No. 37 of 1944 leading to Miscellaneous case No. 132 of 1944 which was also disposed of by the same judgment by the Subordinate Judge and the prayer for execution was also dismissed on 17th March 1945. An appeal filed to the Court of the District Judge being Miscellaneous Appeal No. 36 of 1945 modified the order of the Subordinate Judge and has given rise to second Miscel. laneous Appeal No. 2 of 1946. The appellant in all these three appeals before us is the decree -holder Naresh Chandra Basu and the contesting respondent is the judgment -debtor the Raja Bahadur of Nashipur now represented by the Court of Wards.

(3.) THE second point is if the purchaser includes also the decree -holder purchaser, then as the deposit was not made and the sale had been confirmed so long ago how are the equities to be adjusted? The third point in the first miscellaneous appeal is even if the decree -holder is not entitled to execute the decree obtained by him for arrears of rent, can he execute the same for the costs awarded to him? In this connection the question has also been raised whether arrears of rent will include interest or damages awarded by the Court, or this will be excluded. The view of the learned Subordinate Judge was that interest or damages as well as costs could not be realised by execution. It is not disputed by the respondent that the decree may be executed for the costs. The third question relates to the question of interest. As regards the modes of execution for the balance in the first miscellaneous appeal and also in the two second miscellaneous appeals under the order of the District Judge the decree can be executed in the way pointed out in the Special Bench decision in the case of Sudhir Krishna Ghose and Anr. v. Satish Chandra Hui and Ors. : AIR1944Cal418 . There is no dispute on this point.