SATISH CHANDRA BANDAPADHYA Vs. BISHNUPADA PAL

JUDGEMENT

(1.) This is an appeal on behalf of the judgment-debtor and it is directed against an order made by the Subordinate Judge, Fourth Court, Alipore, on 28 February 1941, rejecting certain objections preferred by the appellant under Section 168A, Ben. Ten. Act. The material facts are, not in controversy and may be shortly stated as follows : One Brajendra Kumar Banerjee owned an undivided eight annas share in zemindary Lot. No. 10, Sunder bans, appertaining to touzi No. 2368 of the 24-Farganas Collectorate. On 14 December 1920, Brajendra granted an ejara lease in respect of his eight annas share in the aforesaid touzi to Satish Chandra Banerjee, the appellant before us, for a period of 30 years at an annual rental of Rs. 2100. In addition to the rent reserved, the lessee undertook to pay all revenue, cess and embankment charges payable to Government in respect to the property. On 8 February 1930, Brajendra mortgaged his interest in the aforesaid touzi to Nagendra Nath Pal and others, the predecessors of the (present respondents, to secure an advance of rupees 12,000. To ensure regular payment of interest due to the mortgagees, the mortgagor assigned to them the rent or munaf a due to him by the ijaradar Satis under the terms of the ijara lease dated 14 December 1920. On the strength of this provision in the mortgage deed, the mortgagees instituted a suit for rent against Satis on 6 April 1934, claiming rents payable under the ijara patta for the years 1337 to 1340 B.S. A decree was made by the trial Court on 15 December 1934, which was affirmed on appeal by this Court on 24 June 1937.

(2.) After certain previous applications for execution of the decree, the present execution case was started on 8 September 1989, and the decree-holders prayed for realization of the balance of the decretal dues by attachment and sale of certain properties other than the tenure in arrears. Thereupon, objections were raised by the judgment-debtor under Section 168A, Ben. Ten. Act, and the decree-holders sought to get round the objections by saying that the decree was not one for rent and, consequently, was not hit by Section 168A, Ben. Ten. Act. It was further contended that Section 168A was ultra vires of the Provincial Legislature. The trial Court by its judgment dated 28 February 1941, negatived the first ground urged by the decree-holders but gave effect to the second. The learned Subordinate Judge was of opinion that the provision of Section 168A, Ben. Ten. Act, being repugnant to that of an existing Indian law which was contained in Section 51, Civil P.C., was void to that extent under Section 107(1), Government of India Act, and although it was one of the matters enumerated in the Concurrent List no assent of the Governor-General having been taken, Sub- section (2) of Section 107 had no application. It is against this judgment that the present appeal has been preferred.

(3.) Mr. Rama Prosad Mookerjee, who appears on behalf of the appellant, has contended before us that the Court below was wrong in holding that Section 168A, Ben. Ten. Act, was ultra vires of the Provincial Legislature or was void under Section 107, Government of India Act. Mr. Chakravarti, who appears on behalf of the respondents, besides attempting to answer the contention of the appellant tried to support the decision of the learned Subordinate Judge on the other ground which was decided against his client, namely, that the decree was not one for rent and, consequently, could not attract the operation of Section 168A, Ben. Ten. Act. We will have to consider both these points in the present appeal. So far as the first point is concerned, we are of opinion that the view taken by the Court below is wrong. The identical question recently came up for consideration before a Division Bench of this Court in Satish Chandra V/s. Sudhir Krishna decided on 27 February 1942. It was held by Nasim Ali and Pal JJ., that Section 168A, Ben. Ten. Act, was a valid piece of legislation which was quite within the competency of the Provincial Legislature. We may say, that we are in entire agreement with that decision. It is difficult to say that there is any real conflict between Section 168A, Ben. Ten. Act, and Section 51, Civil P.C. Section 51 simply enumerates in general terms the various ways in which the Court may order execution of a decree. Obviously, all the modes are not open to an executing Court in every case. The jurisdiction has got to be exercised not only under the conditions and limitations prescribed by the Code, but the proper mode of execution would depend upon the nature of the decree and the circumstances of each individual case.