BYOMKESH MUKHERJEE Vs. BHUPENDRA NARAYAN SINHA BAHADUR

JUDGEMENT

(1.) This is an appeal on behalf of the judgment-debtor and it arises out of an objection under Section 47, Civil P.C., to the execution of a decree. The objection was overruled by the learned Subordinate Judge of Birbhum by his order dated 4 September 1946. The decree in question had been passed on 24 March 1945 in a rent suit by consent of parties. A petition of compromise was put in on that date which was made a part of the decree. The compromise decree as well as the petition of compromise shows that the claim in the suit was for a aum of Rs. 71,947-10-3 on account of rent of a Patni mehal for the period from 1346 B.S. to the month of Jaistha 1349 B.S. calculated at the rate of Rs. 23,705 as the annual rent and Rupees 3025-13-0 as the annual cess payable for the Patni. By the compromise the amount payable by the defendant was fixed at a sum of Rupees 72,986-9-6 including costs. The decretal amount was made payble in a number of instalments which were specified in the solenama and were spread over 11 years from 1352 B.S. to 1362 B.S. There was a default clause which provided that in case there was default in payment of any one of these instalments or any portion of an instalment, the whole of the remaining instalments would be deemed to be in default and the plaintiff would be entitled to enforce payment of the outstanding balance due at the time with interest thereon at the fate of 6 1/4 p.c.p.a. from the date of default until realisation. The whole of this term was embodied in para. 3 of the petition of compromise. In para. 4 there was a further stipulation which also provided that in the contingency therein set out the balance of the instalments which might be outstanding on a specified date would likewise be deemed to be in default as stated in para. 3, and that upon the happening of such contingency the plaintiff would be similarly entitled to enforce payment of the whole of the amount then due under the decree with interest at the same rate of 6 1/4 per cent, per annum. It is on the effect of the interpretation of para. 4 that this appeal turns. The contingency referred to in this paragraph was this. The amount decreed by the compromise covered the rents due up to the end of 1351 B.S. Paragraph 4 recited that from 1351 B.S. the defendant would go on paying the patni rent in accordance with the kists stipulated in the patni kabuliyat, and it was then stated that if owing to non-payment of any of these kists of the patni rent the landlord decree-holder had to file an application for sale of the patni under Regulation 8 [VIII] of 1819, the defendant would be at liberty to prevent the sale by payment of the amount due as provided in the Patni Regulation itself. It was then stipulated that if the defendant made default in payment of any of the instalments of patni rent for which proceedings might have been instituted under the Patni Regulation, then, on such default and "from the date of the Austam Sale," all the instalments of the rent decreed by the compromise would be deemed to be in default and the provision of para. 3 regarding enforcement of the entire decree irrespective of the instalments would thereupon be attracted.

(2.) What actually happened in this case was that the defendant patnidar failed to pay the patni rent for the year 1852 B.S. whereupon the decree-holder was obliged to commence proceedings for the sale of the tenancy under the Patni Regulation, The sale was advertised to take place on 15 May 1946. The judgment, debtor made no payment on or before that date In order to save the patni from sale. The landlord, however, did not allow the sale to be held, but withdrew his application under the Patni Regulation, with the result that no sale took place and the arrears for which he had instituted the proceeding remained outstanding. It is in view "of this abandonment of the sale that the judgment-debtor raised his first objection to the present execution proceeding. The present execution was taken out in terms of the default clause. The decree-holder's case was that as the judgment-debtor had failed to pay the patni rent of the year 1332 B.S. for which application for sale had been made under the Patni Regulation, the default clause came into operation under para. 4 of the petition of compromise. The whole of the amount then due under the compromise decree for rent became accordingly payable. The ground which the judgment-debtor took in answer to the application for execution was that on a proper construction of para. 4 of the petition of compromise the contingency upon the happening of which alone the default clause could operate could not be said to have happened. In support of this contention reliance was placed on the language of para. 4. Paragraph 4 was in these terms: (4) San 1352 Sal hoite bibadi paksha salishi pattani mahale khajna kisti kisti adaya diben, protipaksa taha na dewa beta badike austhtam darkhast korite hoile protibadi protyek khajna bakir aushtamer deya taka aushtam nilamer purbe adaya diben ebang bibadi paksa oirup sartanujayi kono ek aushtamer taka adaya dite truti korile taddhetu o je auabtamer taka dite bibadi paksa truti koriben seyi aushtatn nilamer tarikh hoiteyi atra mokaddamar dikrikrita tatkalinpionakigtisamuha khelap ganya hoibe ebang badibahadur tin dafat barna- namate may samaata asal o suder janya atra baki khajna dikrijari koriya may kharcha samagra raka adaya koriya loite pariben tabate bibadi pakaa kono kichu apatyadi korita pariben na.

(3.) The argument on behalf of the judgment-debtor was that the reference to austam sale in this paragraph imported the holding of such a sale as a sine qua, non for the coming into operation of the default clause. In other words it was suggested that unless the austam sale was actually held, the decree-holder could not claim that there had been such default on the part of the patnidar as would give rise to the right conferred on the decree-holder in para. 3.