TARAPADA BASU Vs. MAHENDRA NATH BISWAS

JUDGEMENT

(1.) This appeal has been beard at considerable length. The litigation which has led to it has had a long history, and the facts relating to the various stages of that history are somewhat complicated. The arguments addressed to us have been very elaborate, but, in the view, that we are constrained now to take, both the facts of the case and the arguments to which we have listened are capable of considerable simplification. The brief facts, in so far as they are material for the purpose of enabling us to dispose of this appeal, are as follows. Some time in the year 1932 one Sarat Bose obtained a money decree against Trailakya Chatterji. In the year 1933 some Chatterjees, including Trailakya Ohatterjee, obtained a rent decree against their tenants, the Ghoses, Neogis and Biswases. This rent decree was a composite one under Section 148A, Bengal Tenancy Act, the dues in Trailakya Chatterjee's share being about Rs. 1555 including costs. In execution of the decree which he bad obtained against Trailakya Chatterjee, Sarat Bose attached the share of Trailakya Chatterjee in this composite decree which all the Chatterjees had obtained against their tenants. The important stages in the history of the case, so far as our present purposes are concerned commence at this stage. Sarat Bose having attached the decrees to which Trailakya Chatterjee was entitled, proceeded to execute this against the Biswases only. Meanwhile, the Biswases had obtained two rent decrees against their tenant, one Sarala Bala, in a Court at Bagerhat. Sarat Bose sought to attach these rent decrees. This execution case was numbered 89 of 1938, and the Biswases strenuously opposed it by raising objections under Section 47, Civil P. C. At the outset of this execution case Sarat Bose obtained an order of attachment of the Biswases decrees against Sarala by virtue of an order made by the executing Court on 21 April 1938. The Biswases objection to that attachment was then heard, and on 16 May 1938, the executing Court upheld the objection, dismissed the execution case, and directed that the attachment which Sarat Bose had obtained of the Biswases decrees against Sarala be removed. Against this order Sarat Bose appealed to the High Court. Meanwhile, the Biswases proceeded to levy execution of the two rent decrees which they had obtained against Sarala, and, on 20th December 1938, and 19 March 1940, some tenures held by Sarala were sold and the Biswases decrees were satisfied. These two dates are important because they relate to the satisfaction of the two rent decrees which the Biswases had obtained against Sarala. Thereafter, on 8 May 1940, Sarat Bose's appeal to this Court was allowed, and the execution case started by him against the Biswases was remanded for further hearing to the executing Court. That Court thereupon passed an order purporting to revive the attachment of the decrees of the Biswases against Sarala which attachment as already stated, Sarat Bose had succeeded in effecting originally in April 1938. Certain stages of the litigation followed which it is unnecessary to refer to for the purposes of the present appeal. Suffice it to say that the Biswases again raised objections under Section 47, Civil P.C., to the execution of the decree which Sarat Bose was seeking to execute against them, and the executing Court on 17 September 1942, upheld those objections and dismissed the execution case. It is against that, order that the present appeal has been preferred.

(2.) The argument addressed to us in this Court has centred round three objections which were taken by the Biswases in the Court below. In the first instance they contended that the decree which Sarat Bose was seeking to execute against them could not be executed by attachment of the decrees which they, the Biswases, had obtained against Sarala, as Section 168A, Ben. Ten. Act, stood in the way, the decree which Sarat Bose was seeking to execute against the Biswases being the rent decree which the Chatterjees had obtained against the Biswases. This objection prevailed in the Court below, but it is clear from the memorandum of objections under Section 47, Civil P.C., which was filed in the executing Court by the present respondents, the Biswases, that two other objections were also taken. The second objection was that the application for execution related to a decree for arrears obtained by landlords, namely, the Chatterjees against the Biswases and that therefore, by reason of Section 148 (o), Ben. Ten. Act, the application would not lie, since Sarat Bose, being the assignee of the decree, had not become clothed with a landlord's interest in the land. In the view which we take, it is unnecessary for us to deal with the elaborate arguments which have been advanced in this Court by the advocates on both sides in relation to these two objections. It is the last objection which we propose to consider. On behalf of the respondents here it has been argued, consistently with ground No. 7 of the memorandum of objections taken on their behalf in the executing Court, that execution by attachment of the decrees which the Biswases had obtained against Sarala was impossible since those decrees were no longer in existence, they having been satisfied, as already stated, by the sale of Sarala's properties on 20 December 1938 and 19 January 1940, respectively. If we refer again to the chronology of the relevant dates, what actually happened was this: The attachment which Sarat Bose had effected of the Biswases decree against Sarala had been removed upon 16 May 1938. Thereafter, the Biawases decree against Sarala was satisfied by the sale of Sarala's properties upon the two dates just mentioned, namely, 20 December 1938 and 19 March 1940, respectively. Subsequently, however, in consequence of the appeal to this Court the execution case filed by Sarat Bose was revived, as also was the attachment which he had succeeded in effecting of the two decrees obtained by the Biswases against Sarala. It has been strenuously contended by Mr. Chatterjee, appearing for the present appellants, that the revival of the said attachment related back to the date upon which the attachment was originally effected, that is to say, to 21 April 1938, and Mr. Chatterji's argument is that, as in the eye of the law the two decrees in question were really under attachment throughout, the sale of Sarala's properties on 20 December 1938 and 19 March 1940, could not operate to satisfy those decrees in frustration of that attachment. According to Mr. Chatterji those decrees were, and still are, in existence and capable of attachment.

(3.) The first thing to be noted in connexion with this argument is that the property, the attachment of which is in question in the present case, was not corporeal property but consisted of two decrees. Section 64, Civil P. C., has therefore no application. In passing, it might be noted that if the principle carried out in that section could even by analogy be invoked, it would not be of any avail to bring home the present argument. All that Section 64 says is that private alienations of the property attached shall be void as against all claims enforceable under the attachment. The section does not refer at all to any alienation by process of Court such as an execution sale.