The interpretation of Section 168A(1)(a) and the applicability of the proviso to the present case.

JUDGMENT

1. This is an appeal on behalf of the judgment-debtors and it is directed against an order made by the Subordinate Judge, Second Court, Midnapore, dated 7th March 1941, rejecting an application of the appellants u/s 168A, Clause (2), Ben. Ten. Act. The material facts are not disputed and may be shortly stated as follows : The respondent decree-holder obtained a rent decree against the appellants for a sum of Rs. 12,626 odd annas on 4th January 1932. It was put into execution in Execution Case No. 5 of 1932 and the tenure in arrears was put up to sale and purchased by the decree-Holder on 23rd August 1932. The sale of the tenure wiped off only a portion of the decretal amount and the decree-holder had to take out successive executions after that for realisation of the balance. In Execution Case No. 16 of 1937, several other immovable properties belonging to the judgment-debtors were attached and sold and as that even did not satisfy the entire decree the present application for execution was started on 17th November 1939. In course of the present execution proceedings, the residential house of the judgment-debtors was attached but before the sale took place the new Section 168A, Ben. Ten. Act, came into force and the judgment-debtors made an application under Sub-section (2) of that section for release of the property attached on payment of costs. This application was rejected by the trial Court on the ground that the present case came under the proviso to Section 168A(1)(a), Ben. Ten. Act, and was consequently exempted from the operation of the main provision. It is the propriety of this decision that has been, challenged on behalf of the appellants in this appeal. The view taken by the Court below was that as soon as the landlord purchased the defaulting tenure on 23rd August 1932 the tenure itself ceased to exist being merged in the superior interest of the landlord, and as the tenancy expired before the present execution proceedings were commenced, by some means, other than surrender by the tenant, the proviso to Section 168A(1)(a) was attracted. Mr. Bose who appears in support of the appeal has contended before us that the proviso has no application except where the tenancy is for a definite period and comes to an end by efflux of time. We do not think that we can accept this contention as sound. The words "term of the tenancy" as used in the proviso are no doubt not very happy but in our opinion they mean the same thing as "tenure or holding" which occur just before them, and there is no justification for interpreting the words in a restricted sense and limiting them to a tenancy for a particular period only. The proviso contemplates the extinction of the tenancy by some method which the law considers valid and the fact that "surrender" is excluded, definitely shows that efflux of the period is not the only mode of extinction which the Legislature contemplates. What the Legislature contemplates is that the tenancy must terminate or cease to exist, and it is not enough that it has merely changed hands and passed on to some person other than the judgment-debtor. In this view we have no doubt that "merger" may be one of the methods by which a tenancy can expire within the meaning of the proviso to Section 168A(1)(a), Ben. Ten. Act. But though we do not agree with Mr. Bose on this point we think that for another reason the present case doe& not come within the exception embodied in the proviso to Clause (a) of the sub-section. In our opinion the proviso contemplates a case where the defaulting tenure did not exist at the initial stage when the decree was first sought to be executed. It does not apply where the tenure was sold in execution of the very decree, for the balance due under which the subsequent execution case was started.

2. It is conceded by Mr. Chakravarty that if the tenure had been purchased by a stranger in the execution case of 1932 the landlord would have been incapable of proceeding against any other