DURGA NARAIN SINGH Vs. GURDEEN

JUDGEMENT

(1.) We have before us Second Appeal No. 946 of 1943 and civil Revision No. 419 of 1945 which have been referred by a learned single Judge to a Full Bench. The parties in both the cases are the same, but they arise out of two different proceedings. A common question of law is involved in both of them and this judgment will govern the second appeal and the revision both.

(2.) In Second Appeal No. 946 of 1943 Capt. Raja Durga Narain Sing, who is now dead and is represented by his son, applied under Section 81, Agra Tenancy Act, 1926, to the Tahsildar for the issue of a notice to the defendant for payment of arrears of rent and for his ejectment in case of default.

(3.) The defendant contested the notice and further proceedings took place in the Court of the Sub-Divisional Officer, Kanauj, as provided by law. As the claim was in respect of arrears of rent the realization of which had been stayed, the question arose whether in view of Section 5, U.P. Stayed Arrears of Rent (Remission) Act, 1939, (XVIII of 1989) the claim could be decreed or not. The Sub-Divisional Officer held that the rent payable by the defendant in 1344 Fasli was less than Rs 500/- and so he dismissed the suit. The plaintiff went up in appeal. Learned District Judge of Farrukhabad, Mr. Nigam, upheld the decision of the trial Court and dismissed the appeal on 80 January 1948. The plaintiff, therefore, comes in second appeal to this Court. Mr. Nigam held that in determining the rent payable by the respondent the remissions granted to him should be deducted. 8. In Civil Revision No. 419 of 1945 the plaintiff obtained three decrees for arrears of rent against the respondent and put them into execution. On 10 June 1938, the execution of the decrees was stayed under the provisions of Section 2, U.P. Stay of Proceedings (Revenue Courts) Act, 1937 (IV of 1937). On the expiry of 4hat Act, the plaintiff applied for the revival of the execution proceedings. The respondent objected and contended that under Section 8, Stayed Arrears of Rent (Remission) Act, 1989 (XVIII of 1939) the execution application should be dismissed and he should be discharged from the liability. It was his case that the rent payable by him in 1844 Pasli was less than Rs. 500/-. The trial Court upheld the objection and the execution application was dismissed. In appeal the learned District Judge. Mr. Desai, who had succeeded Mr. Nigam, disagreed with the view taken by the trial Court and on 13 May 1944, he allowed the appeal and directed the execution proceedings to be revived. The respondent, who is the applicant, comes in revision against that order. Mr. Desai held that in determining the rent payable in 1344 Fasli the remissions granted to the tenant should be ignored.