PRAMATHA NATH CHOUDHURY Vs. DWARKA NATH CHAKRAVARTY

JUDGEMENT

(1.) These are two appeals which have been heard one after the other. First Miscellaneous Appeal No. 185 of 1944 is on behalf of the decree-holders and the other appeal, First Miscellaneous Appeal No. 214 of 1944, is on behalf of the judgment-debtor.

(2.) The following facts require to be stated. There was in the year 1907 a trust deed executed by Maharaja Surja Kanta Acharjya Chouwdhury of Mymensingh whereby the National Council of Education, Bengal, was appointed one of the beneficiaries and certain persons were appointed trustees.

(3.) On 21 June 1923, there was an indenture of lease between the trustees and late Rai Bahadur Dwarka Nath Chakravarty and his brother, Girish Chandra Chakravarty. The lease was a permanent lease, and it will be necessary to consider some of the terms of this lease in deciding the questions which have arisen in both these appeals. The lessees fell into arrears and the trustees instituted a suit on the Original Side of this Court, being Suit No. 2027 of 1932 on 30 August 1932, for the recovery of amounts due under the lease. The suit was decreed and thereafter there were execution proceedings in connection with this decree. The first execution proceeding was on 24 September 1937, and certain objections were taken Under Section 47, Civil P.C., by judgment-debtors 3 and 2. The objections were dismissed and there was an appeal to this Court. That appeal was dismissed on 4 May 1939. Then there was a sale of certain personal properties of the judgment-debtors in execution of the decree of this Court on 10 and 11 September 1939. Objection was raised to the sale and an application was made Under Section 47, and Order 21, Rule 90, Civil P.C. by judgment-debtor 1, Rai Bahadur Dwarka Nath Chakravarty. This was on 11 September 1939. The objections were dismissed by the executing Court and there was an appeal taken against that order of dismissal to this Court, being First Miscellaneous Appeal No. 131 of 1940. That appeal was not proceeded with by Rai Bahadur Dwarka Nath Chakravarty and was dismissed on 24 April 1944. Then there was an execution petition filed at Alipore on 1 May 1940, and objections were raised to the execution by Rai Bahadur Dwarka Nath Chakravarty by proceedings taken Under Section 47, Civil P.C. on 6-9 1940. There was a further objection taken on 15-7-1941, objecting that the execution proceedings could not proceed by reason of the provisions of Section 168A, Bengal Tenancy Act which had then come into force. These objections have been considered by C. C. Ganguly, Esqr., Subordinate Judge, First Court, Alipore and he has passed a judgment, the ordering portion of which is in the following terms: That the application be allowed in part on contest, that as the lease in question has been determined neither by forfeiture nor by surrender, the decree-holders are bound in the first instance to proceed against the demised properties in view of the provisions of Clause 6 of the lease in question. Each party is to bear its own costs.