DARBARI PANJARA Vs. BHOTI ROY

JUDGEMENT

(1.) This Rule raises a question of first impression as to the true scope of Section 15 of the Indian High Courts Act, 1861 The solution of the question raised is by no means free from difficulty, which has been enhanced by the circumstance that the petitioners appeared in person in support of the application. But we have received considerable assistance from Babu Surendra Nath Ghosal who acted as amicus curice, and not only placed before us a full and clear statement of the facts of the case but also drew our attention to the legislative provisions applicable to the matter.

(2.) The facts, so far as it is necessary to state them for the elucidation of the question of law involved, may be briefly narrated. The petitioners were tenants under one Bhoti Roy in Rohini within the Sonthal Parganas. On the first April 1910, the landlord obtained a decree for Rs. 82- 8 -which was the arrear of rent due for the year 1315 and the first-three quarters of the year 1316. This decree was made by the Sub-Deputy Collector of Deoghar. On the 16th January 1911 the decree-holder applied to the Sub-Deputy Collector for execution" by ejectment, on the allegation that, the judgment-debtors had no moveable property and previous applications to realise the judgment-debt by attachment and sale of moveables had failed. The Sub-Deputy Collector held that under these circumstances the judgment-debtors might be ejected from a portion of the holding and submitted the record to the Sub-divisional Officer for orders on the 16th January 1911. On the 4th February 1911, the Sub-divisional Officer recorded his opinion that the tenants should be evicted from the entire holding, and with this recommendation forwarded the record to the Deputy Commissioner of or orders. On the 17th February, 1911, the Deputy Commissioner sanctioned eviction from the entire holding. The records were then returned to the Sub-divisional Officer who proceeded to eject the judgment-debtors and called upon the Sub-Deputy Collector to arrange for re-settlement of the lands. No tenant, however, came forward to take settlement upon payment of the arrears due. The judgment-debtors also expressed their inability to pay the arrears. The Sub-divisional Officer thereupon ordered that the decree holder might keep possession for one year after which the lands should be returned to the judgment-debtors. Subsequently one Beni Roy offered to take settlement, and his application was granted. The judgment-debtors thereupon objected, substantially on the ground thai this Beni Roy was no other than he decree-holder himself, but their objection was overruled both by the Sub-divisional Officer and the Deputy Commissioner, although they offered to pay-up the judgment-debt in full. We are now invited to set aside these proceedings for eviction as irregular and without jurisdiction. There is little room for controversy that the proceedings have been throughout irregular.

(3.) Under paragraph. 29 of the Statutory Rules for the guidance of Civil Courts in the Sonthal Parganas, issued by the Local Government on the 18th. August 1905 under Section 27 of Regulation V of 1893, read with Section 1, Clause (2), of Act XXXVII of 1855, a tenant whose right is not saleable may, in execution of a decree for rent, be, with the Deputy Commissioner s consent, evicted, and the land may then be re-settled. It is plain that the eviction in execution can be effected only by the Court executing the decree. This view is not affected by Section 25 of Regulation II of 1886, which provides for the exemption of raiyats from liability to ejectment except by order of the Deputy Commissioner. In the case before us, the question of ejectment of the tenants from the entire holding never came under the consideration of the Court executing the decree. Section 25 of Regulation II of 1886, which was framed for the protection of the raiyat, was never intended to be used to his detriment in the manner in which it has been applied in the case before us. The procedure contemplated by the Legislature is that the Execution Court determines whether or not the decree is to be executed by ejectment, and the safeguard is provided that if the Execution Court decides in favour of ejectment, the order is not to be carried out until it has been sanctioned by the Deputy Commissioner. It could never have been intended that the scope of the order as made by the Execution Court should be widened by the Deputy Commissioner; as a matter of fact, this has been done in the present case without any notice to the raiyat. It is, further, plain that even after the Deputy Commissioner has given his sanction, there may be no ejectment in fact, because, if the decree is satisfied, it is open to the Execution Court to terminate the proceeding. In these circumstances, we are of opinion that the proceedings for ejectment of the petitioners have not been taken in conformity with the provisions of the Regulation and the Statutory Rules on the subject.