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CALCUTTA HIGH COURT
Satish Chandra Hui & Ors. - Appellant
Versus
Sudhir Krishna Ghosh & Ors. - Respondent
Decided On : 27-02-1942
Section 168A - Bengal Tenancy Act - [168A] - The questions involved in this appeal relate to the newly enacted Section 168A, Ben. Ten. Act, inserted by the Bengal Council Act 18 of 1940 (The Bengal Tenancy (Amendment) Act, 1940), which came into force on 9th January 1914. The decree in question is for arrears of rent due in respect of a patni tenure held under tauzi No. 2409 of the Midnapur Collectorate. The entire patni was sold away by the defendant patnidars in 1938 (1344-45 B.S.) in fractional portions. The suit for the arrears of rent due for the period from 1342 B.S. to Falgoon 1345 B.S. was instituted by the decree-holders against the present defendants on 26th March 1939. In this suit the transferees of the patni were not made parties. The tauzi was sold away for arrears of revenue on 24th June 1939. In the rent suit the defendants inter alia took the plea, that as the patni has been sold away by them they were no longer liable for the arrears. This defence was overruled and the suit was decreed on 14th May 1940. The present application for execution of this decree was made on 21st June 1940. The relief that was prayed for in this application was the realization of the decretal amount by attachment and sale of certain immovable properties belonging to the judgment-debtors 6 to 9. These are properties other than the tenure in arrears. The attachment was effected by 21st December 1940. On 16th January 1941 the judgment-debtors 6 to 9 filed their present objections objecting to the attachment and sale of the properties in view of the new Section 168A, Ben. Ten. Act. The learned, Subordinate Judge by his order dated 15th January 1941 overruled these objections. The present appeal is by defendants 6 to 9 and is directed against this order.
Fact of the Case:
The decree in question is for arrears of rent due in respect of a patni tenure held under tauzi No. 2409 of the Midnapur Collectorate. The entire patni was sold away by the defendant patnidars in 1938 (1344-45 B.S.) in fractional portions. The suit for the arrears of rent due for the period from 1342 B.S. to Falgoon 1345 B.S. was instituted by the decree-holders against the present defendants on 26th March 1939. In this suit the transferees of the patni were not made parties. The tauzi was sold away for arrears of revenue on 24th June 1939. In the rent suit the defendants inter alia took the plea, that as the patni has been sold away by them they were no longer liable for the arrears. This defence was overruled and the suit was decreed on 14th May 1940. The present application for execution of this decree was made on 21st June 1940. The relief that was prayed for in this application was the realization of the decretal amount by attachment and sale of certain immovable properties belonging to the judgment-debtors 6 to 9. These are properties other than the tenure in arrears. The attachment was effected by 21st December 1940. On 16th January 1941 the judgment-debtors 6 to 9 filed their present objections objecting to the attachment and sale of the properties in view of the new Section 168A, Ben. Ten. Act. The learned, Subordinate Judge by his order dated 15th January 1941 overruled these objections.
Finding of the Court:
The learned Subordinate Judge fell into an error as to the effect of the revenue sale of the tauzi held in this case. We have examined all the relevant documents relating to this sale and in our opinion it was a sale of the shares of the tauzi u/s 13 of the Revenue Sale Law and consequently by it u/s 54 of the Revenue Sale Law the purchaser failed to acquire any rights which were not possessed by the previous owners of the tauzi. Such a purchaser did not acquire any right to annul the tenure. In our opinion there is also no substance in the contention raised by Mr. Gupta that the operation of the section is withdrawn from the putni tenures by reason of Section 195(e), Ben. Ten. Act. The relevant portion of Section 195, Ben. Ten. Act, runs as follows: Nothing in this Act shall affect any enactment relating to patni-tenures in so far as it relates to those tenures....
Issues: The questions involved in this appeal relate to the newly enacted Section 168A, Ben. Ten. Act, inserted by the Bengal Council Act 18 of 1940. The decree in question is for arrears of rent due in respect of a patni tenure held under tauzi No. 2409 of the Midnapur Collectorate. The entire patni was sold away by the defendant patnidars in 1938 (1344-45 B.S.) in fractional portions. The suit for the arrears of rent due for the period from 1342 B.S. to Falgoon 1345 B.S. was instituted by the decree-holders against the present defendants on 26th March 1939. In this suit the transferees of the patni were not made parties. The tauzi was sold away for arrears of revenue on 24th June 1939. In the rent suit the defendants inter alia took the plea, that as the patni has been sold away by them they were no longer liable for the arrears. This defence was overruled and the suit was decreed on 14th May 1940. The present application for execution of this decree was made on 21st June 1940. The relief that was prayed for in this application was the realization of the decretal amount by attachment and sale of certain immovable properties belonging to the judgment-debtors 6 to 9. These are properties other than the tenure in arrears. The attachment was effected by 21st December 1940. On 16th January 1941 the judgment-debtors 6 to 9 filed their present objections objecting to the attachment and sale of the properties in view of the new Section 168A, Ben. Ten. Act. The learned, Subordinate Judge by his order dated 15th January 1941 overruled these objections.
Ratio Decidendi: In our opinion there is nothing in Section 168A which can be said to affect the Putni Regulation itself. No doubt it affects the putni-tenures. But as there is nothing in the Putni Regulation relating to the execution of any decree for arrears of rent due in respect of the putni and as Section 168A only gives certain special provisions relating to such execution, the provisions contained in the Putni Regulation are not affected by Section 168A, Ben. Ten. Act. In this view the second question on the point, namely whether or not Section 168A will be controlled by Section 195(e) does not fall to be examined at all in this case. The substantial questions to be decided in this case therefore are: (1) the meaning and scope of the new Section 168A, Ben. Ten. Act, and (2) whether it is void to any extent u/s 107(1), Government of India Act, as contended for by Mr. Gupta.
Final Decision: In the result, this appeal is allowed with costs. The judgment and order of the Court below are set aside and the objection of the judgment-debtors to the execution of the decree by the sale and attachment of the properties attached is allowed. The execution petition is dismissed. The hearing fee in this appeal is assessed at three gold mohurs.
JUDGMENT
1. The questions involved in this appeal relate to the newly enacted Section 168A, Ben. Ten. Act, inserted by the Bengal Council Act 18 of 1940 (The Bengal Tenancy (Amendment) Act, 1940), which came into force on 9th January 1914. The decree in question is for arrears of rent due in respect of a patni tenure held under tauzi No. 2409 of the Midnapur Collectorate. The entire patni was sold away by the defendant patnidars in 1938 (1344-45 B.S.) in fractional portions. The suit for the arrears of rent due for the period from 1342 B.S. to Falgoon 1345 B.S. was instituted by the decree-holders against the present defendants on 26th March 1939. In this suit the transferees of the patni were not made parties. The tauzi was sold away for arrears of revenue on 24th June 1939. In the rent suit the defendants inter alia took the plea, that as the patni has been sold away by them they were no longer liable for the arrears. This defence was overruled and the suit was decreed on 14th May 1940. The present application for execution of this decree was made on 21st June 1940. The relief that was prayed for in this application was the realization of the decretal amount by attachment and sale of certain immovable properties belonging to the judgment-debtors 6 to 9. These are properties other than the tenure in arrears. The attachment was effected by 21st December 1940. On 16th January 1941 the judgment-debtors 6 to 9 filed their present objections objecting to the attachment and sale of the properties in view of the new Section 168A, Ben. Ten. Act. The learned, Subordinate Judge by his order dated 15th January 1941 overruled these objections. The present appeal is by defendants 6 to 9 and is directed against this order.
2. Before the learned Subordinate Judge, the decree-holders contended: (1) That the new Section 168A, Ben. Ten. Act, was ultra vires of the Bengal Legislature; (2) That the section was not applicable to putni tenures; (3) That the provisions of Clause (a) of Section 168A (1) were not applicable as the putni tenure was no longer available for the realisation of the decretal dues (a) it having been sold away by the putnidars; (b) it having been annulled u/s 37 of the Revenue Sale Law by the purchaser of the tauzi at the revenue sale. The learned Subordinate Judge overruled the first two contentions of the decree-holders, but upheld the third one and on this ground-overruled the objection of the judgment-debtors. Mr. Sen appearing in support of the appeal contends: that on a proper construction of the new Section 168A, Ben. Ten. Act, execution of the decree by the attachment and sale of the disputed properties is prohibited by Clause (a) of its Sub-section (1) and that the present case is not covered by the excepting proviso to this clause. According to Mr. Sen, Section 168A(1)(a), Ben. Ten. Act, apart from the "proviso", contains a prohibition for the execution by attachment and sale proceeding against any moveable or immovable property other than the tenure or holding in default; that the proviso to Clause (a) is an excepting one and is limited in the operation only to tenancies for a term of fixed periods; that in any case the exception in the proviso applies only when the tenancy itself is extinguished in" any manner other than by surrender; that in the particular case the sale of the tauzi having been u/s 13 of the Revenue Sale Law, the tenure did not become liable to annulment, and, consequently, as it still subsists, the prohibition contained in Clause (a) of Section 168A shall apply.
3. Mr. Gupta appearing for the respondent on the other hand contends: (i) that Section 168A(1), Ben. Ten. Act, standing by itself and apart from the qualifying proviso, prohibits execution by attachment and sale of any moveable or immovable property other than the defaulting tenure or holding only when the defaulting tenure or holding is still available for the execution of the decree; (ii) that in any case the proviso withdraws the prohib
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