RAJKISHORE PD NARAIN SINGH Vs. MOJIBUL RAHMAN

JUDGEMENT

(1.) This is an appeal by the judgment-debtor and arises in the following circumstances. The appellant who is a cosharer landlord, purchased an occupancy holding in execution of a decree for rent which he obtained against the tenants and thereby acquired the rights mentioned in Section 22(2), Bihar Tenancy Act, that is to say, the right to hold the land subject to the payment to his cosharers of certain money. I refrain from using the word "rent" at present as it is in dispute in this litigation whether what was payable under Section 22(2) is rent or not. The plaintiff obtained a decree against the appellant for what the latter was liable to pay under Section 22(2), and applied for execution of the decree, but as the application was dismissed for default the decree-holder then applied for restoration of the application for execution although by this time execution was barred if the decree be regarded as one for rent. The Court, purporting to act under Section 151, Civil P.C., restored the application, for restitution but without notice to the judgment-debtor. After the order for restitution had been passed and attachment order issued the judgment-debtor appeared and objected to the restoration on the ground that the application for execution had become time-barred. The Court held that although, a fresh application for execution was time barred, it had power to restore the original application and therefore overruled the judgment-debtor's objection. The judgment-debtor moved this Court in Civil Revisions Nos. 464 and 465 of 1940 and this Court set aside the order of the Court below restoring the execution case. The decree-holder then made a further application for execution. The learned Munsif held that the application was within time. On appeal by the judgment-debtor, this decision was upheld by the learned District Judge and against the decision of the District Judge this second appeal has been preferred by the judgment-debtor.

(2.) On behalf of the decree-holder a preliminary objection is taken that the suit out of which the execution proceeding has arisen was a suit of a small cause Court nature, within the pecuniary jurisdiction of the Small Cause Court and therefore no second appeal lies. The decision of that question turns on whether the decree which the respondent obtained is a decree for rent or not as Art. 8 of Schedule 2, Small Cause Court Act, bars the jurisdiction of the Small Cause Court in suits for recovery of rent other than house rent. In Sunder Mall V/s. Lachhmi Tewary A.I.R. 1940 Pat. 467 the question of the status of a cosharer under Section 22(2), Tenancy Act, was considered. In that case the principal question to be determined was the effect of a partition on the rights of a cosharer landlord who had purchased an occupancy holding in execution of a decree against the tenants and it was held that such a cosharer landlord was not entitled to retain possession of the land which he had purchased, after it had been allotted to the patti of another cosharer as the result of a partition. With regard to the nature of the status and rights of the cosharer landlord who purchases an occupancy holding in execution of a decree for rent against the tenant a distinction was drawn between a purchase made prior to the amendment of the Tenancy Act in 1907 and a purchase made after that date. With regard to purchases made before the amendment, it was held on the principle of stare decision that the view taken in Jawadal Huq V/s. Ram Das Saha 1997.24 Cal. 143 should not be disturbed. That view was that a cosharer in occupation by reason of Section 22(2), Tenancy Act, was a tenant and it follows that what, therefore, was payable by him to his cosharer was rent; but with regard to purchases made after the amendment of 1907 the position was held to be different. At page 903 of the report it was said: The amendments of 1907 have made it quite clear that the Legislature never intended that after "the right of occupancy" had been purchased by a proprietor and extinguished by Sub-section (1) of Section 22, the purchaser should be regarded as a tenant by substituting for the words "the occupancy right shall cease to exist" in Sub-section (1) the words "such persons shall have no right to hold the land as a tenant." Precisely, the same language was used in the original Sub-section (2) and should not be construed differently. It is true that the amended Sub- section (2) does not, as in the case of Sub-section (1), provide that the purchaser "shall have no right to hold the land as a tenant." But, in my view, the amendment of that Sub-section should not be construed so as to defeat the object of the Legislature which was to prevent landlords from encroaching upon the raiyati land of the province.

(3.) In my opinion, the question has been concluded by the Full Bench decision and it must, accordingly, be held that a cosharer in possession under Section 22 (2), Tenancy Act, is not a tenant under the cosharers and what is payable to them is not rent. Therefore, the present case was one cognizable by the Court of Small Causes and no second appeal lies. I am asked, however, to treat the memorandum of appeal as an application in revision. It is then contended on behalf of the judgment-debtor that the question whether the present application for execution is in time is not open to the decree-holder by reason of the decision in the proceedings which terminated in Civil Revisions Nos. 464 and 465 of 1940, to which reference has been made above. It may be remembered that after the original application for execution had been restored by the executing Court, purporting to act under Section 151, Civil P.C., the judgment-debtor appeared and objected to the restoration on the ground that by that time the execution of the decree was barred by limitation. The Court held that the execution of the decree had become time barred but considered that it had power under Section 151 to restore the application for execution although by that time the execution of the decree was barred. In this Court, it was held that Order 9, Civil P.C. does not apply to execution proceedings and that the inherent power of the Court under Section 151 should not be utilised for the purpose of restoring execution proceedings which have been dismissed. It was pointed out that the proper remedy to the decree-holder in such a case was to apply for review of the order dismissing the execution case or to file a fresh application for execution. No opinion was expressed as to whether a fresh application would be barred; but it is contended that the decision of that question is implicit in the decision and reliance was placed on the fact that in the order of the executing Court overruling the judgment-debtor's objection it was stated that the execution of the decree had become time barred.