BABU DHIRENDRA NATH ROY Vs. IJJETALI MIAH

JUDGEMENT

(1.) This rule is directed against an order of the Munsif, Second Court, Jhenidah made in a proceeding under Section 26.J, Ben. Ten. Act. The petitioner before us is the landlord and there was an occupancy holding owned by opposite parties 2 to 7 who held the same as tenants under the petitioner. A two-thirds share of this holding was put up to sale in execution of a money decree obtained by a creditor against the tenants and it was purchased by opposite party 1. In the sale certificate the holding was incorrectly described as mokarari and on that footing the purchaser deposited only Re. 1 as landlord's fee. Notice of the sale was served upon the petitioner under Section 26(E), Ben. Ten. Act, on 12 January 1937. On 24th August 1938 the petitioner applied to the Munsif, Second Court, Jhenidah for recovery of the balance of landlord's fees together with compensation under Section 26(J), Ben. Ten. Act, as it stood prior to its being repealed by the amending Act in 1938. The amending Act came into force on 18 August 1938 just six days before the application was presented. The Munsif was of opinion that the petitioner had the right to recover the balance of landlord's fees, but his remedy lay in a suit and not by an application under Section 26(J), Ben. Ten. Act, which was repealed by Act 6 of 1938 and was not in existence at the date when the application was made. It is against this order that the present rule has been obtained. It is not seriously disputed before us that the petitioner acquired the right under Section 26(J) of the old Act to recover the balance of landlord's fees and compensation from opposite party 1 as soon as the holding was sold with an erroneous description that it was a mukarari tenancy, and a corresponding liability was imposed upon the purchaser at the same time to pay the money. Section 26-J stood repealed on and from 18 August 1938, but there is nothing in the repealing Act which would show that the Legislature intended to take away or impair any vested right that had already accrued under the repealed Section. The question that has been pressed for our consideration is, whether the remedy by way of an application was still open to the landlord, or was he bound to enforce his right by means of a regular suit?

(2.) Section 26-J, as it stood before Act 6 of 1938 was passed, simply defined the rights of the landlord to recover the balance of landlord's fees, and compensation in cases where an occupancy holding was sold with a false description that it was a permanent tenure or a holding at fixed rates. The Section itself did not indicate as to how the right was to be enforced, and if the matter stood there, in my opinion the conclusion would have been irresistible that the remedy lay in an ordinary suit instituted under the provisions of the Civil Procedure Code. The Legislature however while enumerating the acts which the law authorizes co-sharer landlords to do, either acting together or by an agent definitely spoke of an application under Section 26-J, Ben. Ten. Act. This provided or rather implied that the remedy of the landlord lay in an application and it was held in several decisions of this Court that the recovery of the balance of transfer fees by the landlord must be by an application and not by a suit : Aghore Chandra Jalui V/s. Rajnandini Debi , Muhammad Ismail V/s. Lal Mia and Mahaluxmi Bank V/s. Abdul Khaleque (1939) 43 C.W.N. 1046. These decisions, I think could be supported on principle. It was Act 4 of 1928, which for the first time created the right in favour of the landlord, and if the Act itself provided as to how the right could be enforced, the remedy should be deemed to be exclusive, and the ordinary right of suit must be held to be barred. As Lord Tanterden G.J., observed in Doe d.Bishop of Rochester V/s. Bridges (1831) 1 B & Ad 847 at p. 859: Where an Act creates an obligation, and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner. If an obligation is created, but no mode of enforcing its performance is ordained, the common law may, in general, find a mode suited to the particular nature of the case.

(3.) The same principle was enunciated by Willes J. in Wolverhampton New Waterworks Co. v. Hawkesford (1859) 6 C.B. (N.S.) 336; and was followed by the Judicial Committee in Attorney-General of Trinidad and Tobago V/s. Gordon Grant & Co. (1935) A.C. 532. Now both Section 26-J as well as Sec. 188, I (1) have been repealed by Act 6 of 1938, and if the right which arose under the old law is not affected by the repealing statute, the question arises as to how the right could be enforced, after the repealing enactment came into force. Mr. Sen argues that the remedy provided by the old Act was still applicable under Section 8, Bengal General Clauses Act, 1 of 1899, and in support of his contention he relies upon a decision of S.K. Ghose J. in Rajendra Nath Nag V/s. Ashalata Debi Section 8, General Clauses Act (Bengal) runs as follows: Where this Act, or any Bengal Act, made after the commencement of this Act repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears, the repeal shall not- (c) affect any right, privilege, obligation or liability acquired accrued, or incurred under any enactment so repealed: or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture; or punishment may be imposed, as if the repealing Act had not been passed.