AMANO BARMANYA Vs. ADHAR CHANDRA MONDAL

JUDGEMENT

(1.) This appeal is on behalf of the landlord t decree-holder and is directed against an order dated 12-7-1943 made by the Subordinate Judge, Murshidabad, dismissing the appellant's application for execution of a rent decree on the ground that it is barred under Section 168A, Bengal Tenancy Act. The facts material for our present purposes may be shortly stated as follows : The appellant instituted a suit against the respondent for recovery of arrears of rent due in respect of a darputni tenure held by the respondent under her, in the Court of the Sub- ordinate Judge of Murshidabad in the year 1937 and it was registered as Kent Suit No. 27 of 1937. The claim in the suit was for arrears of rent due from Ghaitra kist 1341 B.S. to Ashar kist 1344 B.S. Before this suit was disposed of, an-other suit was brought by the appellant against the respondent claiming rent in respect of the same tenure for a subsequent period and this suit was numbered Rent Suit No. 1 of 1940. Both the two suits were disposed of on 30-9-1940 and two decrees were passed on one and the same day. Oh 25-4-1941, the landlord decree-holder applied for execution of the decree obtained in Rent Suit No. 27 of 1937 and, in course of the execution proceedings, the darputni was put up to sale and purchased by the decree-holder on 16-6-1941. There was an application made by the judgment-debtor to set aside the sale under Section 174, Clause (3), Bengal Tenancy Act. This proceeding ended in a compromise but as the judgment-debtor failed to carry out the terms of the compromise, the application to set aside the sale was dismissed and the sale was confirmed on 22-12-1941. The decree-holder auction-purchaser took possession of the property on 8-3-1942. Thereafter, on 13-2-1943, the decree-holder filed an application for execution of the decree obtained in the other rent suit, namely, Rule Section No. 1 of 1940 and as the tenure in arrears was already sold and purchased by her she prayed for recovery of the decretal dues by attachment and sale of other immoveable properties belonging to the judgment-debtor, her case being that as the tenure in arrears was already extinguished by merger she was entitled to the benefit of the proviso attached to Section 168A(1)(a), Bengal Tenancy Act. On this application, an order for attachment was made on 16-3-1943. The judgment-debtor thereupon raised objections under Section 47, Civil P.C. The trial Court after hearing the parties allowed the objections of the judgment-debtor and held that the execution proceedings were not maintainable in view of the provisions of Section 168A(1)(b), Bengal Tenancy Act. It is the propriety of this order that has been challenged before us in this appeal.

(2.) The Subordinate Judge took the view that as the sale in execution of the decree in Kent Suit No. 27 of 1937 took place on 16-6-1941 after Section 168A was introduced into the Bengal Tenancy Act, it was the purchaser of the tenure at the rent sale who was liable under Clause (b) of Section 168A(1) to pay the arrears of rent which accrued due from the date of the institution of the suit down to the date of the-confirmation of the sale. The fact that the auction-purchaser was the decree-holder herself would not make any difference in the application of this provision. The position therefore was that the tenant's liability to pay rent for any period subsequent to the institution of the earlier rent suit was wiped out by the rent sale and consequently the decree for rent obtained by the landlord for any subsequent period could not be executed.

(3.) Dr. Pal appearing on behalf of the appellant does not dispute the correctness of the proposition of the law laid down by a Division Bench of this Court in Phani Bhusan Mukherji v. Purna Chandra that the word "purchaser" in clause (b) of Sub-section (1) and in Sub-section (3) of Section 168A, Bengal Tenancy Act, is not limited to stranger purchasers only but in- eludes a decree-holder purchaser as well. It is conceded therefore that the appellant in the present case was bound to deposit under Sub-section (3) the rent that accrued due for the period subsequent to the institution of Rent Suit No. 27 of 1937 and in lieu of deposit she could certify payment of that amount. Dr Pal argues, however, that the only consequence of non-depositing the rent due for the subsequent period or not certifying payment of the. same would be that the rent sale could not be confirmed by the Court. If, as in the present case, a decree had already been passed in favour of the landlord by a competent Court in respect of the subsequent rents it is not within the jurisdiction of any executing Court to refuse to execute the decree. We think that there is considerable substance in this contention. Mr. Apurbadhan Mukherji appearing for the respondent says that as Section 168A(1)(b) creates a right in favour of the judgment-debtor and imposes an obligation on the auction-purchaser at a rent sale, the right could be enforced in any manner permitted by law and the remedy laid down in Sub-section (3) of Section 168A is not the only or the exclusive remedy. We need not decide in the present case whether this contention is right, but, assuming it to be so, we do not think that this is of any real help to Mr. Mukherji's client. We may assume that the judgment-debtor could enforce the right created in his favour by Clause (b) of Section 168A(1) by way of a suit or where the landlord instituted a suit against him claiming rent for the subsequent period he could set up his rights under Clause (b) as a complete defence to the same. In the case before us, the judgment debtor has not instituted any suit against the auction-purchaser for enforcing the right that the law imposes upon the latter; and as a decree for rent for the subsequent period was already made by a competent Court long before the rent sale took place, the question of raising any defence to a rent suit does not at all arise. So long as the decree stands the executing Court, we think, cannot refuse to execute it. At the same time, we agree with the view taken by Henderson J, in Saroj Bashini Debi V/s. Phanindra Nath Banerji that the liability of the auction purchager to make the payment under Section 168A(1)(b), Bengal Tenancy Act is not affected by the fact that he has already got a decree for rent for the subsequent period. The only difference is that in such cases he would, have to pay not the entire decretal dues but the amount actually payable as rent.