RAMDAS SAHU Vs. KAPIL SAHU

JUDGEMENT

(1.) THE appellant is the holder of a rent decree in respect of bhuinhari tenure. He has sought to execute his decree in accordance with Section 48A(2), Chota Nagpur Tenancy Act, by attachment and sale of the produce of the land comprised in the tenure, Section 48A(1) imposing a bar against his executing the decree by sale of the bhuinhari tenure itself. THE execution was objected to on the ground that the crop standing on the land had, been grown, not by the bhuinhar judgment-debtor but by some under-tenants. Both the Courts below have upheld the objection with the result that the decree-holder has no; means of enforcing his decree. This result, it is contended, cannot have been contemplated by the Legislature. It is the settled policy of rent Legislation in this country always to give the landlord a definite security for the realization of his rent from the assets of the tenancy itself. In the majority of cases this is done by making the rent of a tenancy the first charge on the tenancy as in Section 60, Chota Nagpur Tenancy Act. When as in Section 48A the tenancy itself is made unsaleable we find that the Sub-section (2) of the same section gives the landlord his remedy "by the attachment and sale of the produce of the land comprised in the tenure." This produce has now become the security of the landlord for the rent. Any alienation, of it by the bhuinhar must be in the same position as alienation of hypothecated property by the mortgagor, that is to say, subject to the charge, lien or mortgage which attaches to the property itself. Section 48A, does not anywhere say that in order to be attached and sold the produce of the land comprised in the tenure must be still in the possession of the bhuinhar judgment-debtor and we should be wrong to import any such limitation or exception into the words of the section when they are riot there. THE intention of the Legislature in my opinion was to make the produce of the land liable to be proceeded against in the hands either of the judgment-debtor or of any transferee just in the same way as mortgaged property or hypothecated property is liable for the mortgaged debt whether or no it is in the hands of the original mortgagor. For this reason, I am of opinion that the objection against the rent execution ought to have been disallow, ed and the rent execution ought to have been ordered to proceed. THE appeal will be allowed with costs here and below.