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HIGH COURT OF CALCUTTA
Harries, G. N. Das, Banerjee
AMULYA CHANDRA ROY - Appellant
Versus
PASHUPATI NATH - Respondent
Full Bench Ref. 3 Of 1950, In A. F. A. O. No. 63 Of 1949
Decided On : FEBRUARY 21, 1951
CIVIL PROCEDURE CODE - Execution of decree - Arrest and detention in prison - Calculation of means of judgment-debtor - Property exempt from attachment in execution of decree for arrears of rent - Interpretation of Section 51, proviso (b), Explanation and Section 168a, Bengal Tenancy Act.
Fact of the Case:
The judgment-debtors were arrested in execution of a decree for arrears of rent passed against them. They filed a petition of objection under Section 47, C.P.C., claiming that they were not liable to arrest as they did not have sufficient means to pay the amount of the decree. The Subordinate Judge overruled their objection and directed them to pay the dues within two weeks, failing which a writ for arrest was to be issued. The judgment-debtors appealed to the District Judge, who allowed the appeal and refused the prayer for their arrest. The decree-holders appealed from the order of the District Judge to the Calcutta High Court.
Finding of the Court:
The High Court held that the properties of the judgment-debtors which were exempt from attachment in execution of the decree for rent by virtue of Section 168a, Bengal Tenancy Act, should be left out of consideration in calculating their means for the purposes of Section 61, proviso (b), C.P.C. The Court interpreted the words "attachment and sale" in Section 168a (1) (a) to include both attachment simpliciter and attachment leading up to sale, and held that the judgment-debtors' properties which were liable to be taken in execution either by way of attachment or by the process of attachment and sale were exempt from attachment under Section 168a, Bengal Tenancy Act.
Issues: 1. Whether the properties of the judgment-debtors which were exempt from attachment in execution of the decree for rent by virtue of Section 168a, Bengal Tenancy Act, should be left out of consideration in calculating their means for the purposes of Section 61, proviso (b), C.P.C.? 2. Whether the words "attachment and sale" in Section 168a (1) (a) include both attachment simpliciter and attachment leading up to sale?
Ratio Decidendi: 1. The Court held that the properties of the judgment-debtors which were exempt from attachment in execution of the decree for rent by virtue of Section 168a, Bengal Tenancy Act, should be left out of consideration in calculating their means for the purposes of Section 61, proviso (b), C.P.C. The Court interpreted the words "attachment and sale" in Section 168a (1) (a) to include both attachment simpliciter and attachment leading up to sale, and held that the judgment-debtors' properties which were liable to be taken in execution either by way of attachment or by the process of attachment and sale were exempt from attachment under Section 168a, Bengal Tenancy Act. 2. The Court held that the words "attachment and sale" in Section 168a (1) (a) include both attachment simpliciter and attachment leading up to sale. The Court reasoned that the intention of the Legislature was to protect the judgment-debtors' properties from all forms of execution involving attachment, and that a narrow interpretation of the words "attachment and sale" would defeat this intention.
Final Decision: The High Court dismissed the appeal and upheld the order of the District Judge refusing the prayer for arrest of the judgment-debtors.
( 1 ) THIS Reference to a F. B. has arisen out of a proceeding in execution of a decree passed in a suit for arrears of rent of a tenure which were initiated and continued in accordance with the provisions of chap. XIII, Bengal Tenancy Act.
( 2 ) THE decree for rent was passed in 1936. This decree was executed by the applts. by the arrest of judgment-debtors. The judgment-debtors filed a petn. of objection under Section 47, C. P. C. on the ground that they are not liable to arrest as they are not possessed of sufficient means to pay the amount of the decree. The Subordinate Judge, Asansol, overruled the objection filed by the judgment-debtors and directed the judgment-debtors to pay the dues of the decree-holders within two weeks failing which a writ for arrest was directed to be issued. The judgment, debtors preferred an appeal to the Ct. of the Dist. J. The appeal was allowed and the prayer for arrest of the judgment-debtors was refused. Against the order of the Dist. J. the decree-holders preferred an appeal from an appellate order to this Ct. This appeal was heard by Sen and Chunder JJ on 28-6-1950. The learned Judges were of opinion that there was a conflict of opinion between Bench decisions of this Ct. on the question whether the properties which are exempt from attachment and sale in execution of a decree for arrears of rent by virtue of Section 168a, Bengal Tenancy Act, should be left out of consideration in calculating the means of the judgment-debtor for the purposes of Section 61, proviso (b), C. P. C. This question was accordingly referred to a F. B. As the question arose in an appeal from an appellate order their Lordships referred the whole appeal for final decision to the F. B.
( 3 ) I shall first deal with the question which has been referred to the F. B. Section 51, C. P. C. prescribes the procedure in execution of a decree. The section lays down that the Ct. may order execution of a decree in the modes stated in Clauses (a) to (e) which are as follows :" (a) by delivery of any property specifically decreed: (b) by attachment and sale or by sale without attachment of any property ; (c) by arrest and detention in prison ; (d) by appointing a receiver ; or (e) in such other manner as the nature of the relief granted may require. "
( 4 ) CLAUSE (c) provides for execution of a decree by arrest and detention in prison. Section 2, C. P. C. , (Amendment) Act XXI [21] of 1936 added a proviso to the section. The proviso placed restrictions on the power of the Ct. executing the decree to direct arrest and detention where the decree was for the payment of money. It provided that in such a case the Ct. shall not order execution by detention in prison unless it is satisfied (a) that the judgment-debtor was guilty of contumacious conduct as set forth in Sub-clauses (i) and (ii); or (b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same; or (c) that the decree is for a sum which the judgment-debtor was bound in a fiduciary capacity to account.
( 5 ) IN the present case we are concerned with Clause (b) of the proviso. The Amending Act also added an Expln. to Section 51 which reads as follows :"in the calculation of the means of the judgment-debtor for the purposes of Clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree. "
( 6 ) THE amending of the expln. came to be considered in the case of Manohar Lal v. Debendra Nath, 50 C. W. N. 181 : (I. L. R. (1946) 1 Cal. 145.) It was held that "as the expln. speaks only of attachment, and not of attachment and sale, in calculating the means of the judgment-debtor the Ct. should not leave out of account the properties belonging to the judgment-debtor which, tho
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