JOY GOPAL SINGHA Vs. UDAY CHAND MAHARAJADHIRAJ BAHADUR

JUDGEMENT

(1.) This appeal is on behalf of the judgment-debtors and it is directed against an appellate Order of Mr. Simpson, District Judge of Hooghly, dated 8 December 1941, reversing a decision of the Subordinate Judge, First Court of that place made in a proceeding under Section 47, Civil P.C. The facts in controversy lie within a short compass and may be stated as follows: The appellants held a patni under the Maharajadhiraj of Burdwan who is respondent before us. The respondent instituted a suit for recovery of arrears of rent due in respect of the patni, being Rent Suit No. 2 of 1939, in the Court of the First Subordinate Judge of Hooghly and got a decree. Before the institution of the suit the patni was sold under Regn. 8 of 1819 and purchased by the Maharajadhiraj himself and the rent suit was for recovery of antecedent balances as well as unrealised portion of the dues for which the patni was sold. The decree- holder got the decree transferred to the Court of the Subordinate Judge at Monghyr for the purpose of proceeding against other immovable properties of the judgment-debtors. Upon this the judgment-debtors presented an application to the Hooghly Court under Section 47, Civil P.C. praying that the certificate might be recalled from the Monghyr Court on the ground that under Section 168A, Ben. Ten. Act, the landlord decree-holder was incapable of proceeding against any other property moveable or immovable of the judgment-debtors. This contention was accepted by the Subordinate Judge who dismissed the decree-holder's application for execution. On appeal the judgment was reversed and it is against this decision of the appellate Court that the present second appeal has been preferred.

(2.) The learned District Judge who heard the appeal based his decision on two grounds. In the first place he held that as the patni was sold under Regn. 8 of 1819 prior to the institution of the suit the tenancy had expired so far as the tenant was concerned and consequently the case was governed by the proviso attached to Section 168A (1), Ben. Ten. Act. In the second place it was held by the learned District Judge that Section 168A, Ben. Ten. Act, was ultra vires of the Provincial Legislature and was an invalid piece of legislation.

(3.) So far as the second ground is concerned it has now been held by this Court in more cases than one that Section 168A, Ben. Ten. Act, is not ultra vires of the Legislature and that it does not contravene the provisions of any existing Indian law: Satish Chandra V/s. Sudhir Krishna , Satish Chandra V/s. Bishnu Pada Pal and Bir Bikram Kishore V/s. Tofazzal Hossain