(1.) The question raised in this appeal, which is by the judgment-debtor, depends upon the construction of the proviso to Section 168A, Sub-section (1) (a), Bengal Tenancy Act. The material facts which are admitted, are as follows: In 1932 the respondent obtained a decree against the appellant for arrears of rent due in respect of a patni taluk. The decretal amount was ES. 4395 odd plus costs amounting to Rs. 495. Before 1940 that decree was executed four times and a total sum pf Rs. 880 was realised. In 1940 the decree was put into execution again. In the course of this execution there was an adjustment between the parties on 5th June 1940. By the adjustment the decree-holder agreed to receive Rs. 3639-8 in full satisfaction of the decree. The sum of Rs. 839-8 was paid by the appellant on that date and the balance, Rs. 2800, was made payable in instalments. One of the terms of the adjustment was that if there was any default in payment of an instalment or if the patni taluk was sold in a rent sale or a sale tinder Regn. 8 of 1819, the whole of. the then outstanding balance would become payable and could be realised by execution of the decree passed in the rent suit. The judgment-debtor paid the first instalment amounting to Rs. 400 but failed to pay further instalments. For realising subsequent arrears of rent, which had not been included in the rent suit, the respondents took proceedings under Regn. 8 of 1819 and the patni taluk was sold in these proceedings by the Collector. At the sale held by the Collector, the respondents purchased the same on 15 May 1941. That sale was duly confirmed. Thereafter on 14 July 1942 the respondents filed an application for executing their decree as adjusted on 5 June 1940 (rent execution No. 5 of 1942). They prayed for recovery of the sum of Rs. 2400 by attachment and sale of the judgment-debtor's properties, other than the patni taluk in arrear, which, as we have already stated, did not at that time belong to the judgment-debtors. The judgment-debtors filed an objection under Section 47, Civil P. C. They contended that in view of Section 168A, Sub-section (1) (a), Bengal Tenancy Act, which had come into operation on 9 January 1941 the execution was not maintainable. The decree-holders contended that they were entitled to proceed against those properties of the judgment-debtor by reason of the proviso to that sub-section of Section 168A. Both the Courts below have overruled the objection and have allowed the execution to proceed. The learned Subordinate Judge based his order on the following grounds:
(2.) (1) Relying on the decision in Satish Chandra Hui V/s. Sudhir Krishna Ghosh , he held that by the putni sale and purchase by the landlords, there had been complete merger of the tenants and landlords interests and consequently that "the term of the tenancy" had expired within the meaning of the proviso to Sub-section (1) (a) of Section 168A, Bengal Tenancy Act. (2) Distinguishing the facts, but following the principles laid down in Atul Chandra V/s. Gopendra Narayah , he held that the application for execution by attachment and sale of property other than the putni taluk made on 14 July 1942 was made after "the term of the tenancy" had expired : (a) the putni taluk had been Sold in execution of a decree other than the decree of which execution was being sought, and (b) the decree of which execution" was sought was not the original decree but a new decree after adjustment on 5 June 1940 and that the present application for execution was therefore the first or initial application for execution so far as the adjusted decree was concerned. On appeal, the learned District Judge of Burdwan agreed with the learned Subordinate Judge in his conclusions on grounds (1) and (2) (b), but differed from him in the view he took as to ground (2) (a), holding that the fact that the landlords had purchased, the putni taluk in execution, not of the decree of which execution was being sought, but under Regn. 8 of 1819 for subsequent arrears, was immaterial so far as concerned the applicability of the principles laid down in Atul Chandra V/s. Gopendra Narayah . On the first two grounds, however, he disallowed the objections to the execution and the judgment- debtors have now appealed to this Court.
(3.) The decisions of the lower Courts have been attacked on three main points : (1) That as the putni taluk was created prior to 1882, the conclusion that "the term of the tenancy" had expired by merger was erroneous in the absence of clear proof by the landlords of that fact; (2) that the lower Courts erred in holding that the application for execution was an application for; execution of a new decree and not of the original decree, and, in consequence (3) that following the decision in Atul Chandra V/s. Gopendra Narayah , the application for execution within the meaning of Sub-section (1) (a) of Section 168A, Ben. Ten. Act, was made before "the term of the tenancy "had expired, even if it should be held that "the term of the tenancy "had expired by merger, and the landlords were not therefore entitled to the benefit of the proviso to that sub-section. We shall deal with these points seriatim.