LAWS(PVC)-1912-6-24

BHIKARI SUKUL Vs. MOHANT GADADHAR RAMANUJ DAS

Decided On June 10, 1912
BHIKARI SUKUL Appellant
V/S
MOHANT GADADHAR RAMANUJ DAS Respondents

JUDGEMENT

(1.) We are invited by the petitioners to set aside an order made in execution of a decree for money obtained against them by the opposite party, on the 30th May 1899, under the Bengal Rent Act, (X of 1859). The decree-holder has made successive applications, for execution and realised various sums from time to time. In the application whereby the present proceedings were instituted on the 20th May 1911, the decree holder prayed for sale of the moveable properties of the judgment-debtors, for the arrest of their persons, and, if the decree was not satisfied by these means, for the sale of their immoveable properties. The judgment debtors took exception to the application on two grounds, first, that it was not maintainable under Section 109 of the Bengal Rent Act, 1859; and secondly, that the claim for interest was not sustainable. The Court below has overruled these objections and directed execution to proceed. In this Court, the objections mentioned have been re-iterated.

(2.) In support of the first objection, it has been urged, first, that no execution can be taken out against the immoveable properties of some of the judgment-debtors as the moveables belonging to the other judgment-debtors have not yet been sold; and, secondly, that execution cannot be sought against the immoveable properties, when, on the face of the application, the decree-holder asserts that there are moveables against which he wishes to proceed. In support of the second objection that the claim for interest is not sustainable, reference has been made to the terms of the decree, which, although referring to a petition of compromise whereon it is based, specifically allows the plaintiff a sum of Rs. 3,500 and the costs of the litigation.

(3.) In so far as the first branch of the first ground is concerned, it is plainly unsubstantial. Section 109 of the Bengal Rent Act," 1859, provides that in the execution of any decree for the payment of money under the Act, not being money due as arrears of rent of a saleable under-tenure, if satisfaction of the judgment cannot be obtained by execution against the person or moveable property of the debtor within the district in which the suit was instituted, the judgment creditor may apply for execution against any immoveable property belonging to such debtor. This section, it will be observed, clearly contemplates the case of a single execution creditor and a single judgment-debtor; it does not specifically refer to the case of a joint and several decree against a number of judgment-debtors. In the present case, the decree under execution is a joint and several decree, and the decree-holder is at liberty to take out execution against any or as many of the judgment-debtors as ha may choose. He has apparently not taken out execution against two of the judgment-debtors and has proceeded against the remaining persons. It has been argued, on behalf of the petitioners, that inasmuch as no proceedings have been taken either against the persons or the moveable properties of these two judgment-debtors, the decree-holder is not entitled to apply for execution against the immoveable properties of the other judgment-debtors, although, so far as the latter are concerned, their moveable properties have bean already exhausted. In our opinion, this contention is ingenious but unsound. The section obviously contemplates that an application for execution against the immoveable property of a judgment debtor is not to be made till proceedings have been taken against his parson or moveable property. The requirements of the law are satisfied, if, in so far as an individual judgment-debtor is concerned, proceedings have been taken against his person or moveable property before an attempt is made to reach his immoveable property; he has no concern with his fellow judgment-debtors, and, he cannot indirectly restrict the right of the execution-creditor to proceed at his choice against one or some only of the entire body of judgment-debtors. The first branch of the first contention, therefore, cannot be sustained.