SATISH CHANDRA HUI Vs. SUDHIR KRISHNA GHOSH

JUDGEMENT

(1.) The questions involved in this appeal relate to the newly enacted Section 168A, Ben. Ten. Act, inserted by the Bengal Council Act 18 of 1940 (The Bengal Tenancy (Amendment) Act, 1940), which came into force on 9 January 1914. The decree in question is for arrears of rent due in respect of a patni tenure held under tauzi No. 2409 of the Midnapur Collectorate. The entire patni was sold away by the defendant patnidars in 1938 (1344-45 B.S.) in fractional portions. The suit for the arrears of rent due for the period from 1342 B.S. to Falgoon 1345 B.S. was instituted by the decree-holders against the present defendants on 26 March 1939. In this suit the transferees of the patni were not made parties. The tauzi was sold away for arrears of revenue on 24 June 1939. In the rent suit the defendants inter alia took the plea, that as the patni has been sold away by them they were no longer liable for the arrears. This defence was overruled and the suit was decreed on 14 May 1940. The present application for execution of this decree was made on 21 June 1940. The relief that was prayed for in this application was the realization of the decretal amount by attachment and sale of certain immovable properties belonging to the judgment-debtors 6 to 9. These are properties other than the tenure in arrears. The attachment was effected by 21 December 1940. On 16 January 1941 the judgment-debtors 6 to 9 filed their present objections objecting to the attachment and sale of the properties in view of the new Section 168A, Ben. Ten. Act. The learned, Subordinate Judge by his order dated 15 January 1941 overruled these objections. The present appeal is by defendants 6 to 9 and is directed against this order.

(2.) Before the learned Subordinate Judge, the decree-holders contended: (1) That the new Section 168A, Ben. Ten. Act, was ultra vires of the Bengal Legislature; (2) That the section was not applicable to putni tenures; (3) That the provisions of Clause (a) of Section 168A (1) were not applicable as the putni tenure was no longer available for the realisation of the decretal dues (a) it having been sold away by the putnidars; (b) it having been annulled under Section 37 of the Revenue Sale Law by the purchaser of the tauzi at the revenue sale. The learned Subordinate Judge overruled the first two contentions of the decree-holders, but upheld the third one and on this ground-overruled the objection of the judgment-debtors. Mr. Sen appearing in support of the appeal contends: that on a proper construction of the new Section 168A, Ben. Ten. Act, execution of the decree by the attachment and sale of the disputed properties is prohibited by Clause (a) of its Sub-section (1) and that the present case is not covered by the excepting proviso to this clause. According to Mr. Sen, Section 168A(1) (a), Ben. Ten. Act, apart from the "proviso", contains a prohibition for the execution by attachment and sale proceeding against any moveable or immovable property other than the tenure or holding in default; that the proviso to Clause (a) is an excepting one and is limited in the operation only to tenancies for a term of fixed periods; that in any case the exception in the proviso applies only when the tenancy itself is extinguished in" any manner other than by surrender; that in the particular case the sale of the tauzi having been Under Section 13 of the Revenue Sale Law, the tenure did not become liable to annulment, and, consequently, as it still subsists, the prohibition contained in Clause (a) of Section 168A shall apply.

(3.) Mr. Gupta appearing for the respondent on the other hand contends: (i) that Section 168A (1), Ben. Ten. Act, standing by itself and apart from the qualifying proviso, prohibits execution by attachment and sale of any moveable or immovable property other than the defaulting tenure or holding only when the defaulting tenure or holding is still available for the execution of the decree; (ii) that in any case the proviso withdraws the prohibition enacted in Clause (a) as soon as the judgment-debtor's interest in the tenancy ceases to exist; (iii) that in any case the entire tauzi having been sold under the Revenue Sale Law the purchaser thereof became entitled to annul the tenure under Section 37 of the Revenue Sale Law and as a matter of fact did annul the same; consequently the tenure itself has expired. Mr. Gupta further seeks to support the final order of the Court below on the grounds: (1) that the new Section 168A, Ben. Ten. Act, is void under Section 107(1), Government of India Act, being repugnant to the provisions of the existing Indian law, namely (a) Section 51, Civil P.C., (b) Secs.2 and 3 of the Putni Regulation (2) that at any rate the section is controlled by Section 195 (e), Ben. Ten. Act, and consequently cannot affect the putni tenures.