SM SUDHAMOYEE BASU Vs. BHUJENDRA NATH BISWAS

JUDGEMENT

(1.) This is an appeal by the decree-holders against an appellate order of the District Judge of Burdwan dated 19 February 1934 in a proceeding under Section 47, Civil P.C. The appellants obtained a decree in the first Munsif's Court at Krishnagar (Nadia) on 1 February 1932 for Rs. 1,636-10-11 against three ladies, Jagmay a, Padmabati and Bhababhabini for arrears of rent of a tenure inherited by them from their father which accrued after the death of their father. On 6 February 1932 Jagmaya died and on 5 May of the same year Padmabati died. On 22 June, 1932 the sole surviving daughter Bhababhabini surrendered her life interest in the estate left by her father by a deed of surrender in favour of the reversioners. Simultaneously with this deed of surrender, a deed of family arrangement and partition was executed between the reversioners by which the properties surrendered by Bhababhabini were partitioned between them. It appears from the deed of partition that the respondents in the present appeal took upon themselves the liability to pay the outstanding debts of Jogamaya and Padmabati in respect of certain properties including the tenure the rent of which was in arrears. On the application of the appellants a certificate was sent by the Nadia Court to the first Court of the Munsif at Burdwan about the non-satisfaction of the decree on 30 March 1933. An execution case was thereupon started in the Burdwan Court on 1 May 1933 against the reversioners including the respondents in this appeal. Certain properties which the respondents got by the deed of surrender were thereafter attached and time was taken by the judgment-debtors to pay off the decretal dues and from time to time certain amounts were paid towards the satisfaction of the decree. Ultimately on 28 November 1933 the respondents objected to the execution of the decree on the ground that they were not personally liable for the decretal amount. The learned Munsif rejected that objection and allowed the execution to proceed. On appeal by the judgment-debtors to the appellate Court, the learned Judge has set aside the order of the learned Munsif. Hence this second appeal by the decree-holders.

(2.) The decree under execution is a rent decree. The appellants however do not want to execute it under the provisions of the Bengal Tenancy Act, by attachment and sale of the defaulting tenure which lies in Nadia district. The decree was transferred to Burdwan Court to be executed there as a money decree. It has been already stated that certain immovable properties within the jurisdiction of the Burdwan Court which the respondents have got absolutely by the deed of surrender have been attached by the Burdwan Court. Bhababhabini is not a party to the execution case. The decree is being executed against the reversioners as a money decree. The point for determination is whether the present execution ease is maintainable in law in its present form.

(3.) The appellants case is that the present application for execution is maintainable against the respondents under Section 50, Civil P.C. The word "dies" in that section in my opinion has been used in its natural meaning. It does not include civil death: Madhu Rao V/s. Gur Narain, 1331 All 306. Again the respondents are not the legal representative's of the judgment-debtor within the meaning of Section 50, read with Section 2, Clause 11, Civil P.C. The contention of the appellant however, is that as the daughters of the last male owner were sued in the rent suit in representative character the estate which the respondents got by surrender as reversionary heirs is liable for the decree which was obtained in that suit. I have already pointed out that the decree for rent was for arrears which accrued after the death of the last male owner. As the daughters were in enjoyment of the rents and profits of the tenure the liability for rent ought to be regarded as their personal liability and ought not to be held as attaching to the reversion unless the appellants proceeded to bring the tenure itself to sale under the special provisions of the Bengal Tenancy Act: see Jiban Krishna Rao V/s. Brojo Lal Sen (1903) 30 Cal 550.