PROVINCE OF BIHAR Vs. DARBARI MISSER

JUDGEMENT

(1.) This is a Letters Patent appeal from the decision of Manohar Lall J. in Misc. S.A. No. 311 of 1943, arising out of an execution proceeding.

(2.) The facts of the present case are fully set out in the judgment of Manohar Lall J., and may also be briefly recapitulated here. The respondent took a lease from the Director of Agriculture, Bihar, some time ago for three years and, after the expiry of the lease, the appellant brought a suit to recover arrears of rent for a certain period. The suit was decreed on 26 May 1939, and the appellant applied for the execution of the decree by the arrest of the judgment-debtor. The respondent judgment-debtor objected to the execution mainly on the ground that the decree being for arrears of rent, he was not liable to be arrested under Section 177A, Bihar Tenancy Act. Section 177A provides that: Notwithstanding any thing to the contrary contained in the Civil P. C., 1908, a decree for arrears of rent obtained against a raiyat or an under-raiyat shall not be executed-(a) by the detention in the civil prison of the judgment-debtor, or (b) by the sale of houses and other buildings with the materials and the sites thereof and the lands immediately appurtenant thereto and necessary for their enjoyment, belonging to the raiyat or under-raiyat and occupied by him.

(3.) This section also provides that any house or building and the materials and the sites thereof and the lands immediately appurtenant thereto and necessary for their enjoyment may be sold in the execution of a decree for arrears of rent due in respect of the site of such house or building.