SUDHIR KRISHNA GHOSE Vs. SATISH CHANDRA HUI

JUDGEMENT

(1.) On 14 May 1940 the appellants obtained a decree against the respondents in rent Suit no. 2 of 1939 in the Court of the Subordinate Judge at Midnapore for arrears of rent of a patni tenure. Before this decree the interest of the decree-holder appellants was sold away at a revenue sale and the judgment-debtors interest in the patni was transferred to some other persons with the result that the decree passed in the rent suit had the effect of a money decree. On 21 June 1940, the appellants put this decree into execution in Execution Case No. 14 of 1940. In the application for execution, the appellants prayed for realisation of the decretal amount by attachment and sale of certain properties belonging to judgment-debtors 6 to 9 and 25 to 28. These were properties other than the tenure in arrears. The properties were attached on 21 December 1940. On 9 January 1941 the Bengal Tenancy Amendment Act of 1940 by which Section 168A was introduced into the Act came into force. On 16 January 1941 the judgment, debtors nos. 6 to 9 filed a petition objecting to the sale of the properties attached in view of the provisions of Section 168 A, Ben. Ten. Act. On 25 January 1941 the Subordinate Judge overruled these objections. On 3 February 1941 the judgment, debtors 6 to 9 filed an appeal Satish Chandra V/s. Sudhir Krishna.Repoted in , in this Court against the Order of the Subordinate Judge dated 25 January 1941. This appeal was allowed by this Court on 27 February 1942. The decree-holder has obtained leave of this Court to appeal to His Majesty in Council against the Order of this Court allowing the appeal. On 29 April 1942 the decree-holder filed another application of execution of the decree in rent suit No. 2 of 1939 against judgment-debtors 6 to 9 and 25 to 28. This execution case was registered as Execution Case no. 4 of 1942. In this execution case the decree-holder prayed for the realisation of the decretal amount by the appointment of a receiver under Section 51, Civil P.C, of certain properties of judgment-debtors 6 to 9 and 25 to 28. These properties do not inolude the tenure in arrears. On 30 May 1942 the judgment debtors 6 to 9 and 25 to 28 filed objections to this execution petition. The objection of the judgment.debtor so far as it is relevant for purposes of the present appeal is that in view of the provision of Section 168A, Ben. Ten. Act, the executing Court has no power under Section 51, Civil P.O., to appoint a receiver of the properties. This objection of the judgment-debtors has been allowed. Hence this appeal by the decree-holder Section Sec. 51, Civil P.C. runs as follows: Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, Order execution of the decree: (a) by delivery of any property specifically decreed; (b) by attachment and sale or by sale without attachment of any property; (c) by arrest and detention in prison; (d) by appointing a receiver; or (e) in such other manner as the nature of the relief granted may require.

(2.) The material provisions of Section 168A, Ben. Ten. Act, are: 1(a) a decree for arrears of rent due in respect of a tenure or holding, whether having the effect of a rent decree or money decree, or a certificate for such arrears signed under the Bengal Public Demands Recovery Act, 1913, shall not be executed by the attachment and sale of any moveable or immoveable property other than the entire tenure or holding to which the decree or certificate relates: Provided that the provisions of this Clause shall not apply if, in any manner other than by surrender of the tenure or holding the term of the tenancy expires before an application is made for the execution of such a decree or certificate; (b) the purchaser at a sale referred to in Clause (a) shall be liable to pay to the decree-holder or certificate-holder the deficiency, if any between the purchase price and the amount due under the decree or certificate together with the costs incurred in bringing the tenure or holding to sale and any rent which may have become payable to the decree-holder between the date of the institution of the suit and the date of the confirmation of the sale.

(3.) In Bahadur Singh Singhi V/s. Sanyasi Charan Ghose , Henderson J. has held that Section 168A, Ben. Ten. Act, does not prohibit or affect any mode of execution other than the attachment and sale of the judgment-debtor's property and does not therefore bar his arrest and detention. In Anil Kumar V/s. Beman Behari , a Division Bench of this Court has held that Section 168A, Ben. Ten. Act, does not bar the execution of a rent decree by attachment under the provisions of Order 21, Rule 53, Civil P.C. of a decree passed in favour of the judgment- debtor. The reasons given in support of this decision are these: (a) Section 168A is an encroachment upon the rights which the landlord decree- holder had under the ordinary law and it cannot be extended beyond what is warranted by the actual language of the section. (b) In construing an Act the Court of law had got to ascertain the intentions of the legislature from what the latter has chosen to enaot either in express words or by reasonable implications. (c) A judicial tribunal is bound to give effect to the clear language used in a statute even though it is of opinion that consequences are not such as could have been contemplated by the Legislature. (d) There are no words in Sec. 168A which show that the only form of execution which is available to the decree-holder is to attach and sale the defaulting tenure and nothing else. (e) A mere attachment without sale of the property is not prohibited by Section 168A.