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PATNA HIGH COURT
Ahmad and Misra JJ.
Nihar Ganguli
Versus
Rai Anath Nath Basu
Appeal From Original Order No. 405 of 1954 ; 406 of 1954 ;
Decided On : JANUARY 04, 1956
RENT DECREE - EXECUTION - ELECTION OF REMEDIES - CLAIM BEFORE CLAIMS OFFICER OR EXECUTION IN CIVIL COURT - SUBORDINATE JUDGE'S ORDER PUTTING DECREE-HOLDERS TO ELECTION - ILLEGALITY - DECREE-HOLDERS' RIGHT TO PROCEED AGAINST RENT CLAIMED PROPERTY AS WELL AS OTHER PROPERTIES AS MONEY EXECUTION - ORDER RECALLING ORDER TRANSMITTING DECREES TO CALCUTTA HIGH COURT SET ASIDE.
Fact of the Case:
The appellants, Trustees of the estate of Maharaja Sir Jotindra Mohan Tagore, obtained two decrees in rent suits against the respondents. The decrees were executed in Rent Execution Case No. 37 of 1950 and the tenure in question was attached on 11-4-1950. On 6-11-1951, the State of Bihar issued a notice under Sec.3 , Bihar Land Reforms Act and the tenure in question vested in the State of Bihar. Execution Case No. 37 of 1950 was accordingly struck off on 23-8-1952. The decree-holders applied on 12-12-1952, for transfer of the first decree to the original side of the Calcutta High Court from the Court of the Subordinate Judge, Gaya, which passed the decree. The judgment-debtor objected to the application for transfer of the decree to the Calcutta High Court. On .20-12-1952, objection of the judgment-debtor to the transfer was dismissed. The judgment-debtor filed Misc. Appeal No. 12 of 1953 in this Court on 21-1-1953, and on 23-1-1953, the appeal was dismissed by a Division Bench of this Court under Order 41 Rule 11, Civil P. C. On 29-1-1953, the Court of the Subordinate Judge, Gaya, transmitted the decree in Rent Suit No. 10 of 1947. On 2-2-1953, the decree-holders filed a claim case before the Claims Officer under the Land Reforms Act which was numbered as Claim Case No. 8 of 1953 and was re-numbered subsequently as Claim Case No. 18 of 1954. On 20-2-1953, the decree in Suit No. 1 of 1950 was sought to be transferred by the decree-holders for execution to the Calcutta High Court. On 23-4-1953, the learned Subordinate Judge passed final order on the application for transfer of this decree as well. On transfer the two decrees were sought to be executed on the original side of the Calcutta High Court and execution was taken out on 23-7-1953.
Finding of the Court:
The learned Subordinate Judge was wrong in putting the decree-holders to election. Mr. Waris, his successor-in-office, was bound to consider the prayer of the decree-holders that the two decrees from the Calcutta High Court should not be recalled on its own merits, and not because the decree-holders failed to exercise an option given to them by Mr. S.P. Singh under order dated 23-11-1954.
Issues: Whether the learned Subordinate Judge was right in putting the decree-holders to election?
Ratio Decidendi: Election in the technical sense is confined to the case of a gift or will where the donee or legatee is given a choice of accepting a property under the Gift or Will belonging to the donor or testator and, in the alternative, to fulfil some other condition which it is within his power to fulfil. In the event of his electing to take under the Will or Gift, he is bound in law to fulfil the other condition which would be binding upon him, and a Court of law would not allow him to resile from the position once he makes an election proceeding in one way or the other as required under the document concerned. The principle does not apply, however, in the case of a legal remedy and it is not open to the Court to compel a party to choose one remedy in law or another. All that the Court of law is concerned with is to decide the matter before it on its merits. If the Court comes to the conclusion that the case as presented before it is one in which no relief can be granted to the suitor, or not in the manner desired by him, it is to proceed only on the merits of the case.
Final Decision: The appeals accordingly succeed and the order of the learned Subordinate Judge is set aside.
Misra, J.
1. These two appeals arise out of two execution cases based on two decrees obtained by the appellants who are Trustees of the estate of Maharaja Sir Jotindra Mohan Tagore against the respondents in the following circumstances:
2. The two decrees were passed in Bent Suit No. 10 of 1947 and Rent Suit No. 1 of 1950, respectively, in respect of the same tenure which was held by the respondents under the proprietor represented by the appellants. The tenure in question was created on 5-1-1897, by exchange of Patta & Kabuliat between Maharaja Sir Jotindra Mohan Tagore as landlord and Pashupati Bose as in the name of one Bhava Nath Sen.
A sum of Rs. 15,676/1/- including revenue was the rental fixed under the document creating the tenure, of which a sum of Rs. 3000.00 approximately was for revenue and cess leaving a sum of Rs. 12,000.00 and odd as the net rental payable by Pashupati Nath Bose to the landlord. It appears that the rent was regularly paid up to the year 1939. Prom that year on, however, the tenure fell into arrears and the proprietor had to institute suits from time to time for realisation of the arrears of rent in respect of the tenure.
Accordingly, when Rent Suit No. 10 of 1947 was instituted for Falgoon kist of 1353 Fs. to Falgoon kist of 1354 Fs., there were already rent decrees outstanding. Rent Suit No. 10 of 1947 was decreed for a sum of Rs. 184077- and odd on 8-5-1948, and Rent Suit No. 1 of 1950 was decreed for a sum of Rs. 55,506/4/- on 31-3-1952. The decree of Rent Suit No. 10 of 1947 was executed in Rent Execution Case No. 37 of 1950 and the tenure was attached on 11-4-1950. On 6-11-1951, the State of Bihar issued a notice under Sec.3 , Bihar Land Reforms Act and the tenure in question vested in the State of Bihar. Execution Case No. 37 of 1950 was accordingly struck off on 23-8-1952. The decree-holders applied on 12-12-1952, for transfer of the first decree to the original side of the Calcutta High Court from the Court of the Subordinate Judge, Gaya, which passed the decree. In the meantime, on 8-12-1952, as a result of the notification under the Land Reforms Act, the proprietary interest also vested in the State of Bihar.
The judgment-debtor objected to the application for transfer of the decree to the Calcutta High Court. On .20-12-1952, objection of the judgment-debtor to the transfer was dismissed. The judgment-debtor filed Misc. Appeal No. 12 of 1953 in this Court on 21-1-1953, and on 23-1-1953, the appeal was dismissed by a Division Bench of this Court under Order 41 Rule 11, Civil P. C. On 29-1-1953, the Court of the Subordinate Judge, Gaya, transmitted the decree in Rent Suit No. 10 of 1947.
On 2-2-1953, the decree-holders filed a claim case before the Claims Officer under the Land Reforms Act which was numbered as Claim Case No. 8 of 1953 and was re-numbered subsequently as Claim Case No. 18 of 1954. On 20-2-1953, the decree in Suit No. 1 of 1950 was sought to be transferred by the decree-holders for execution to the Calcutta High Court. On 23-4-1953, the learned Subordinate Judge passed final order on the application for transfer of this decree as well. On transfer the two decrees were sought to be executed on the original side of the Calcutta High Court and execution was taken out on 23-7-1953.
Execution Case No. 20 of 1953 arose out of the decree in Rent Suit No. 1 of 1950 and execution Case No. 21 of 1953 arose out of the decree in Rent Suit No. 10 of 1947. On 10-7-1953, notice was issued under Order 21, Rule 22, Civil P. C., in the Calcutta High Court by the Master in Chambers fixing 4-8-1953, as the date to show cause why the decree should not be executed.On the date fixed the judgment-debtors did not appear and, accordingly, attachment was effected of a house of the judgment-debtor-appellant in Calcutta on 7-8-1953. On 28-8-1953, objection was filed by judgment-debtor No. 1, out of six judgment-debtors. The remaining judgment-debtors, however, did not object. The records were
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