Gopendraprasad Shukul And Ors. vs Ramkishore Shaha on 28 April, 1933

Calcutta High Court
Gopendraprasad Shukul And Ors. vs Ramkishore Shaha on 28 April, 1933
Equivalent citations: AIR 1933 Cal 919
Author: Mitter


Mitter, J.

1. These three appeals arise from orders made in the course of execution of three decrees for rent. The judgment-debtors, who have been unsuccessful in the Courts below, are the appellants in each of three appeals, and their objections depend on similar state of facts. It appears that Shree Shree Ramchandra Deb Thakur, represented by the shebait Raja Bhupendranarayan Singha Bahadur, obtained three decrees for rent in respect of a patni tenure, standing in the name of Nidhanchand Ray, for three different periods respectively. The decrees were assigned over to the respondent Ramkishore Shaha, for consideration, by three different deeds of sale respectively. The main objection taken by the judgment-debtors in all three cases, is that Section 148(o), Ben. Ten. Act is a, bar to the execution of the decrees. The objection has been overruled by both the Courts below. Hence the present appeals. There were minor objections to the execution, which will be noticed later.

2. The contention of the judgment-debtors in each of three cases is that Section 148(o) is a bar to execution of a decree for rent, whether the decree, which has been assigned has been obtained by a, sole landlord or by a fractional landlord and, in such circumstances, these decrees are incapable of execution. In reply, the respondent takes up two positions. In the first place, ho contends that the cases, which have held that where a decree obtained by a sole landlord is assigned over to a third party in whom the landlord’s interest has not vested cannot be executed even, as a money decree, are not uniform and, in view of the conflict, an appeal has been made to us that we must refer the matter to a Full Bench, Secondly, it is said that, assuming that the preponderance of authority is in favour of the appellants’ contention so far as decrees for rent in the true sense of the term are concerned, the decree obtained by a cosharer landlord, for his share of the rent in a suit not framed under Section 148-A, Ben. Ten. Act, cannot be regarded as a rent decree, but must be treated as a money decree, and to the execution of such a decree, Section 148(o) cannot apply, as it is outside the purview of the Bengal Tenancy Act, and Mr. Bagchi, who appeared for the respondent, has put forward the somewhat bold contention that the decisions which take the contrary view, to one of which I was a party, are wrong and require re-examination. It becomes necessary, therefore, to examine the language of the statute and the interpretation put on the same by the judicial decisions, Section 148(o) of the Act, which is in the same terms substantially as Section 148(h) of the Act as it stood before its amendment by Bengal Act 4 of 1928, runs as follows:

148(o). Not with standing anything contained in Rule 16, Order 21 in Sch. 1, Civil P. C, 1908, an application for the execution of a decree for arrears obtained by a landlord shall not be made by an assignee of the decree unless the landlord’s interest in the land has become and is vested in him,

3. Now, looking to the plain language of the statute, it would appear that the Court shall not entertain an application for execution of a decree for arrears obtained by a landlord at the instance of an assignee of such decree unless the landlord’s interest is also vested in him The words “a landlord” also leave no doubt that the decree for rent might have been obtained by a co-sharer landlord, for a co-sharer landlord is also a landlord. It would be doing violence to the language of the clause to say that the clause suggests that it should be restricted to the case of a co sharer landlord, when he brings a suit for rent framed as under Section 148-A. That would be reading into the clause words which do not exist there. It is then argued, however, that Section 148 opens by enacting that:

The following rules shall apply to; suits for the recovery of rent.

and it is said that the decree obtained by a co-sharer landlord cannot have the effect of rent decree, but has the effect of a money decree, but that does, not solve the difficulty, for, unless a suit brought by a co-sharer landlord for his share is not a suit for rent, Section 148(o) will have application. For this extreme contention that a suit brought by a co-sharers landlord for his share of the rent ia not suit for rent, within the meaning of the Bengal Tenancy Act, reliance has been placed on the case cited by the respondent after the close of the argument: Kesho Prasad Singh v. Ramdeni Singh AIR 1923 Pat 897. This, case no doubt shows that such a suit is not a suit for rent and the decree is not a decree for rent and I find a recent case of this Court, not cited at the bar,, which seams to follow the Patna case see the observation of Greaves, J., in which Mukerji, J., concurred, Sivdas Dutt v. Birendra Krishna Dutt and to have laid down broadly that a suit brought by a co-sharer landlord for his share of the rent and not framed as under Section 148-A is outside the purview of the Bengal Tenancy Act. There is a conflict of authorities on this point even in this Court, but it seems to me that the beta, tar opinion is that indicated by Mookerjee and Vincent, JJ., in the case of Tha’kainani Dasi v. Mohendra Nath Dey. (1909) 3 I C 389. The learned Judges point out that a decree in a suit for rent by a co-sharer landlord for his share of the rent is a decree made under the Act, because it is made in a suit tried in accordance with the procedure prescribed in Ch. 13 of the Act. The test to be applied is whether it terminates a suit tried in accordance with the Act, and not whether it is capable of execution under Ch. 14 of the Act. The learned Judges notice that a different view was taken in Kedarnath Banerjee v. Ardha Chunder Roy (1901) 29 Cal 54 by Maclean, C, J., and Banerjee, J., but they point out that this case really took a view opposed to all the previous decisions. It is necessary to reproduce the reasons of the decision in Thakamani Dasi’s case (1909) 3 1 C 389, as I entirely agree with them. The learned Judges say, after adverting to the true test for determining whether a suit for rent is a suit under the Act:

Sufficient importance was not attached to this distinction in the case of Kedarnath Banerjee v. Ardha Chunder Roy (1901) 29 Cal 54, in which it was assumed that a suit for rent by the entire body of landlords is, by virtue of S..183, instituted under the Act, whereas a suit by a cosharer landlord for his share of the rent is instituted under the general law. This distinction however can no longer be maintained in view of the decision of the Judicial Committee in Pramadanath Roy v. Ramani Kanta Roy (1903) 35 Cal 331 * * * * Both classes of suits are commenced under the general law, and they are both tried under the judicial procedure described in Chap. 13 of the Act. When we reach the stage of the enforcement of the decrees made in both classes of suits, we find however that Chap. 14 defines certain special consequences which follow from the execution of a decree for the entire rent, and also prescribed the mode of execution of such a decree. From this point of view, a decree obtained by a co-sharer landlord for his share of the rent would be appropriately described as a decree made under the Act, and this was unquestionably the view which was generally accepted before decision in Kedarnath Banerjee v. Ardha Chunder Roy (1901) 29 Cal 54.

4. This decision was apparently not followed in the case of K.B. Butt v. Gostha Behary Bhuiya (1913) 17 IC 207 and it was held that a decree obtained by a cosharer landlord for his share of the rent was not governed by Article 6, Sch. 3 of the Act, for it was a suit not under this Act. But K.B.Dutt’s case (1913) 17 IC 207 has not been followed in subsequent cases: see Mrityunjoy Bhatlaaharjee v. Bhola Nath Butt (1913) 20 I C 833 where Mookerjee and Beachcroft, JJ., refused to follow; K.B. Dutt’s cases (1913) 17 IC 207. See also the decision in Keshablal Mukherji v. Rasikchandra Manna M.A. No. 562 of 191.2 decided on 26th January 1914 by Fletcher and Chatterjea, JJ.. It seems to me that there is much good sense in the reasoning of Mookerjee, J., in Thaka mani’s case (1909) 3 1 C 389 and I am of opinion that view should be accepted. Considering therefore all the material parts of Section 148,, it appears, on the plain and literal meaning of the statute, that no Court shall entertain an application for execution of a decree for rent at the instance of the assignee of such decree, where the decree is obtained by all landlords or by a cosharer landlord, unless the landlord’s interest is vested in the assignee. It may lead to the undesirable result of making a decree for rent inalienable except where the landlord’s interest in the tenancy is also assigned, but, as has been pointed out in the case of Manurattan Nath Bas v. Hari Nath Das (1901) 1 CLJ 500, that the more liberal construction of the section has the two-fold disadvantage that it renders necessary a straining of the language of the clause and the adoption of a narrow and restricted view of the scope of the entire section itself.

5. On the larger question with regard to the bar of execution of rent decrees in the stricter sense, there is the decision of Richardson and Walmsley, JJ., in the case of Sudhanya Kumar Poddar v. Gouranga Chandra (1917) 41 IC 542, and, so far as cosharer landlords are concerned, there is the obiter of Mookerjes, J., in Manurattan’s case (1901) 1 CLJ 500 and there are two recent decisions of this Court to one of which I was a party. In the case of. Bijanbala Butt v. Mathuranath Sikdar my learned brother Mukerji, J., took the view that the bar of Section 148(o) applied to assignees of decrees for rent obtained by cosharer landlords and I concurred in this view. In a later case, Sir George Rankin, C J, and Pearson, J.t adopted the same view. See the case of Bahimuddi Lupti-v. Jogendra Kumar Singha (1931) 54 C LJ 596. In view of these decisions, I am not prepared to reconsider the decisions or to refer the” matter to the Full Bench.

6. Mr. Bagchi for the respondent has analysed the conflict of view with meticulous care and he points out that the position is this: in Harinath Das v. Dengunath Chaudhuri Second Appeal No. 2143 of 1898 decided on 25th May 1900 by Ameer Ali and Brett, JJ., Nagendra Nath Bose v. Bhuban Mohan (1901) 6 CW N 91 and Karuna Moyi Banerjee v. Surendra Nath Mookerjee (1898) 25 Cal 176, the view has been maintained that the assignee of a rent decree, in whom the landlord’s interest has not vested, can execute it as a money decree under the Civil Procedure Code. It is also pointed out that the question was referred to a Full Bench, which proved abortive: see the case of Uttam Chandra v. Raj Krishna Dalai (1918) 28 CLJ 31n and that the Judges in the case of Manmotha Nath v. Rakhal Chandra (1909) 3 IC 324 and Rajani Kanla Ghosh v. Rama Nath Roy AIR 1915 Cal 310 were for referring the matter to a Full Bench. He summarises this conflict by saying that eight Judges are in favour of his contention, six for referring the matter to a Full Bench and six Judges are against him. All this conflict of view was before the legislature when important changes were effected in the Bengal Tenancy Act by the legislation of 1928. The legislature however did not make any change in the language of Clause 148(o) and, in such circumstances, the plain meaning of the statute must be adhered to and the judicial decisions which follow the golden rule of construing statutes by giving effect to their plain and grammatical meaning should be followed. We do not therefore feel pressed to refer the matter to a Full Bench.

7. We are therefore of opinion that the Courts below were wrong and their decisions must be sot aside and the execution applications to which these three appeals relate must be dismissed. It remains to notice a minor objection raised for the respondent in two of the appeals. It is argued that when the assignee wanted to be substituted in place of the original decree-holder and applied under Order 21, Rule 16, Civil P.C. and when the order allowing substitution was made it is no longer open to the judgment-debtor to question the right of the assignee to proceed to execution by reason of any bar imposed by law, and this argument is based on the principle analogous to res judicata and reliance is placed on the decision of the Privy Council in the ease of Mungul Pershad Dichit v. Grija Kant Lahiri (1881) 8 Cal 61. The judgment-debtors did not appear when they were called on to show cause why the assignee should not be brought on the record and they submitted to the position that the assignee could be substituted in place of the original decree-holder. That does not mean that they were concluded from agitating the question whether the assignee could execute the decree as the landlord’s interest had not vested in him.

8. The question as to whether Section 148(o) was a bar to execution had not been raised at any stage before the present application for execution and could not have been decided even by implication before. The question really arises after the assignee is brought on the record. The validity of the assignment is one question and after the validity had been determined whether the assignee could proceed to execute when the landlord’s interest had not vested in him by reason of Section 148(o) is another and a different question. This latter question can only be determined after the validity of the assignment had been decided and the assignee is brought on the record and at no previous stage. It is clear therefore, the rule analogous to re3 judicata does not apply and consequently the judgment-debtor is not precluded from raising the objection to execution of the decree. The result is that all the three appeals are allowed and the execution applications are dismissed. Parties will bear their own costs throughout. The result however is regrettable, for the decree-holder is deprived of his just dues but for the bar imposed by law, but we have to administer the law as we find it. The policy of the law seems to be that it would not encourage the sale of a decree for arrears of rent apart from the landlord’s interest.

M.C. Ghose, J.

9. I agree.

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