SK ABDUL AZIZ Vs. MAHARAJ UDAY CHAND MAHATAB

JUDGEMENT

(1.) This is an appeal on behalf of the judgment-debtors and it is directed against an appellate order of B.S. Simson Esqr., District Judge of Hooghly, dated 23 August 1941, reversing an order of the Munsif, first Court, of that place made on an application under Section 168A(2), Ben. Ten. Act. The material facts are not disputed and may be shortly stated as follows : The Maharaja of Burdwan, who is respondent in this appeal, obtained a decree against the appellants and their cosharers for arrears of rent due in respect of a putni taluk held by the latter under him. The decree was for arrears of rent due for the years 1842 to 1344 B.S. and was obtained in December 1939. The putni itself was sold under Regn. 8 of 1819 on 15th November 1938 and was purchased by a stranger. The rent suit which was instituted after the sale, was for recovery of antecedent balances of the putni rent which would not be paid out of the sale proceeds of the tenure under Section 17 of the Patni Regulation. The decree-holder put the decree into execution and as the tenure was already sold, he attached certain immovable properties belonging to the judgment-debtors. Pending these execution proceedings Section 168A, Ben. Ten. Act, came into force and the judgment, debtors made an application under Clause (2) of that section for release of the attached properties on payment of necessary costs. The trial Court granted the prayer, being of opinion that Section 168A, Ben. Ten. Act, prevented the decree-holder from proceeding ; against other properties of the judgment-debtors. On appeal, the judgment was reversed and the application of the judgment-debtors was refused, it being held by the District Judge that Section 168A, Ben. Ten. Act, was ultra vires of the Provincial Legislature and if intra vires was applicable to putni tenures. It is the propriety of this judgment that has been challenged before us in this second appeal.

(2.) Now so far as the question of ultra vires is concerned it has now been held in a series of decisions of this Court that Section 168A, Ben. Ten. Act, is a valid piece of legislation which it was not beyond the power of the Provincial Legislature to enact and that it is not repugnant to the provisions of any existing Indian law. We may refer in this connexion to the cases in Satish Chandra V/s. Sudhir Krishna , Satish Chandra V/s. Bishnupada Pal and Bir Bishore Manikya Bahadur V/s. Tafazzal Hossain . In the first of these cases it was further held that there was nothing in Section 168A, Ben. Ten. Act, which affected the provisions of the Patni Regulation. Both the grounds therefore upon which e the learned District Judge based his decision are prima facie untenable. Dr. Basak who appears for the respondent did not seriously press the question of ultra vires though he did not actually give it up and he has attempted to support the decision of the District Judge substantially on two grounds. He has argued in the first place that as the defendants in the rent suit had ceased to be tenants at the date when the suit was instituted the decree which was obtained in the suit was not a decree for arrears of rent within the meaning of Section 168A, Ben. Ten. Act, and consequently that section is inapplicable. It is further said in support of this contention that under the proviso to Section 17, Clause (3) of the Patni Regulation the claim for antecedent balances which remained due after the sale of the patni was no longer realisable as rent but would become a money claim pure and simple. The second argument of Dr. Basak is that if antecedent balances were realisable as rent, Section 168A, Ben. Ten. Act, would be repugnant to the provisions of Section 17 of the Patni Regulation and under Section 195, Ben. Ten. Act, the latter would prevail.

(3.) So far as the first point is concerned it is clear from the language of Section 168A(i), Ben. Ten. Act, that it purports to deal, not with a rent decree proper in its technical sense but with a decree for arrears of rent as understood ordinarily and it is immaterial whether it has the effect of a rent decree or a money decree in law. It will be seen that Section 168A finds a place in chap. 14, Ben. Ten. Act, and if the expression decree for arrears of rent stood alone it could have been legitimately argued that the section was limited to rent decrees proper in respect to which the procedure laid down in chap. 14, Ben. Ten. Act, was available to the landlord decree-holders. But the words "having the effect of a rent decree or a money decree" which occur immediately after this expression place it beyond doubt that the Legislature did not intend to use the expression in the technical sense of a decree which could only be executed in the manner laid down in Chap. 14, Ben. Ten. Act. What is necessary therefore to attract the operation of the section is that the decree must be for arrears of rent. Dr. Basak argues that there could not be a decree for rent unless the plaintiff and the defendant in the suit occupied the position of landlord and tenant respectively and as in the present case the defendants had ceased to be tenants at the time when the suit was brought it was not a suit for rent within the meaning of the Bengal Tenancy Act at all. This argument though plausible at first sight does not appear to us to be sound. Rent is defined in Section 3(13), Ben. Ten. Act, to mean "whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of use or occupation of the land held by the tenant."