SUDHANYA KUMAR PODDAR Vs. GOURANGA CHANDRA SAHA CHOWDHURY

JUDGEMENT

(1.) The determination of this appeal turns on the true construction of Clause (h) of Section 148 of the Bengal Tenancy Act. The clause is in the following terms.

(2.) "Nothwithstanding anything contained in Section 232 (now Order XXI, Rule 16) of the Code of Civil Procedure, an application for the execution of a decree for arrears obtained by a landlord shall not be made by an assignee of the decree, unless the landlord s interest in the land has become and is vested in him."

(3.) At first sight the meaning of the language used seems plain, but reported oases show that there are difficulties lurking under the surface. In some cases such as Karuna Moyi Barterjee v. Surendra Nath Mookerjee 26 C. 176 : 13 Ind. Dec. (N.S) 717. the question has arisen whether the decree sought to be executed was a "decree for arrears" within the meaning of the clause. The expressions "assignee" and landlord s interest" have also been the subject of debate Chhatrapat Singh v. Gopi Chand Bothra 26 C. 750 : 4 C. W. N. 446 : 13 Ind. Dec. (N.S) 1080.; Shambhu Nath Singh v. Sheo Proshad Singh 18 Ind. Cas. 689 : 40 C. 462 : 17 C. W. N. 276 : 17 C. L. J. 227. In the present case there is no doubt that the decree is a decree for arrears obtained by a landlord and assigned for value to a third party and that the landlord s interest has not become vested in the assignee. The contention is that the clause extends no further than to prohibit the execution of an assigned decree under the provision of Chapter XIV of the Bengal Tenancy Act, and does not prohibit execution of the decree as a simple decree for money under the Civil Procedure Code.