An intermediary who has applied to the State Government for recovery of arrears of rent under section 9(1) of the West Bengal Estates Acquisition Act, 1953, cannot simultaneously execute a decree for arrears of rent.

1. THE present appeal arises out of a petition of objection filed under section 47, Code of Civil Procedure, and is directed against the judgment and order of the District Judge, 24-Parganas dated July 27, 1961 in Misc. Appeal no. 711 of 1960 affirming the judgment and order of the learned Munsiff, Second Court, Basirhat, dated June 30, 1960 in Misc. Judl. Case No. 101 of 1959.

2. THE appellant got a decree for arrears of rent in Rent Suit No. 1994 of 1955 on June 14, 1955. The present application for execution was presented on March 3, 1959 when the period of limitation was about to expire. The application for execution was registered as Rent Execution Case No. 85 of 1959. The petition of objection under section 47, C. P. C. was filed on July 28, 1959.

To appreciate the objection it is necessary to state certain facts. The decree holder being an intermediary his rent receiving interest vested in the state of West Bengal on April 15, 1955. The decree holder, thereafter, made an application under section 9 of the West bengal Estates Acquisition Act, 1953, and the said application was granted by the Government of West Bengal. Section 9 gives an intermediary an option to have arrears of rent collected through the State Government on certain conditions. Section 8 of the Act provides that all arrears of rent and case together with interest thereon and other amounts lawfully recoverable by an intermediary on the date of vesting from any person, in respect of any interest of such intermediary which vests under section 5 and all sums due from such person in respect of any decree for arrears of rent in respect of such interest, whether having the effect of a rent decree or money decree and whether obtained before or after the date of vesting, the execution of which is not barred by limitation, shall continue to be recoverable by such intermediary.

3. SUB-SECTION (1) of section 9 says that an intermediary may apply to the state Government for recovery by the State Government of all sums recoverable by him under the provisions of section 8. Sub-section (3) of section 9 provides that if the State government grants the application it shall be competent for the State Government to recover all such sums as if they were public demands, or in any other manner as if the State Government were the intermediary.

4. AS the application of the decree-holder appellant has been granted by the State Government it is the State government who is competent to receiver the sum due to the decree-holder by the judgment debtor respondent. The judgment debtor respondent, therefore, filed the petition of objection under section 47, C. P. C. contending that the decree-holder appellant was not competent to execute the decree because his application under section 0 (1) had already been granted. The argument is that if an application under section 9 (1) is granted by the State Government the applicant's right to recover decretal dues vests in the State Government. The State Government may recover the decretal dues of the applicant intermediary either by certificate proceeding or in any other manner.

The State Government is competent to recover all sums recoverable by an intermediary whose application under section 9 (1) has been granted as if the State Government were the intermediary. By a legal fiction the State government is to be regarded as the intermediary. Under section 8 the in termediary himself can recover all arrears of rent and all sums due in respect of any decree for arrears of rent. The alternative mode of recovery is to apply to the Government under section 9 asking the Government to recover all sums recoverable by him under section 8. The intermediary cannot be allowed to pursue both the modes of recovery simultaneously. As soon as he makes an application under section 9 (1) he elects not to recover the dues himself under section 8. If the Government takes step to recover the arrears, whether embodied in a decree or not, the intermediary hims