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Calcutta High Court
Krishna Chandra Dutta Chowdhury vs Dina Nath Biswas on 11 April, 1927
Equivalent citations: AIR 1928 Cal 94
Author: Mitter


Mitter, J.

1. This Rule was issued on the opposite party to show cause why the order of the Subordinate Judge of Pabna, dated the 30th July 1926, refusing to entertain the claim of the petitioners under Order 21, Rule 58, Civil P.C, should not be set aside. The facts which have given rise to this Rule are:

That Rai Bahadur Dinanath Biswas, who is the opposite party to the Rule, is the 8-annas owner of certain mehals and he created a patni tenure in respect of 9-annas share of his interest, treating the 8-annas as 16-annas, in favour of the Sanyals; that on the 22nd of Falgoon, 1317 B.S., the Sanyals sold the patni tenure by registered deeds of sale to the petitioners before this Court; that riot-withstanding, notice of purchase of patni by the petitioners, the zemindar brought a suit for rent in respect of the said patni against the Sanyals, who had parted with their interest in the patni at the date of the said suit and obtained a decree for arrears of rent on the 7th July 1925; that the decree-holder zemindar made three applications for execution, the last of which was on the 1st May 1926; that in this last application, the decree-holder, opposite party, instead of applying for attachment and sale of the patni tenure, under Ch. 14, Bengal Tenancy Act, applied for attachment and sale of only one-fourth share of the said tenure; that the said one-fourth share of the tenure was attached in pursuance of the application of the decree-holder and the petitioners preferred a claim to the attachment of the said share of the patni under Order 21, Rule 58, Civil P.C., before the Subordinate Judge of Pabna.

2. The learned Subordinate Judge rejected the claim holding that the claim was not maintainable by reason of the provisions of Section 170, Bengal Tenancy Act. It may be mentioned here that the Subordinate Judge arrived at this conclusion not without great hesitation. In support of this Rule, the learned advocate for the petitioners has argued that the decision of the. Subordinate Judge is wrong and that he has put a wrong interpretation under Section 170, Bengal Tenancy Act, in holding that that section applies not merely when a tenure or holding is attached in execution of a decree for arrears due thereon, but also when a portion of a tenure is attached in execution of a decree for arrears of the whole tenure. It seems to us that this contention is right. Section 170, Bengal Tenancy Act, runs as follows:

Section 278 to 283 (Order 21, Rules 53 – 63) (both inclusive) of the Civil Procedure Code shall not apply to a tenure or holding attached in execution of the decree for arrears due thereon.

3. The words “tenure” or holding mean the whole of the tenure or holding and not part of the tenure or holding. The intention of the legistature seams to be that in order to attract the operation of Section 170, Clause (1), not only should the decree be for arrears of rent of the tenure, but that it should be executed as a rent decree, i.e., by the attachment and sale of the entire tenure. It is true that the word “tenure” includes a portion of the tenure, but, in order to understand the meaning of the section, the general scope of the chapter in which it occurs must be taken into consideration Section 158B(1), which is the first section of Ch. 14, Bengal Tenancy Act, says:

Where a tenure or holding is sold in execution of a decree for arrears of rent due in respect thereof (omitting immaterial portions) the tenure of holding shall, subject to the provisions of Section 22, pass to the purchaser, if, such decree was obtained by (i) a sole landlord or (ii) the entire body of landlords, or (iii) one or more co-sharer landlords who has, or have, sued for the rent due to all the co-sharers in respect of the entire tenure or holding and made all the remaining co-sharers parties defendant to the suit.

4. In other words, the scheme of the Chapter is that if a decree is a decree for rent, in the true sense of the term, then file entire tenure will pass in execution of such decree Sections 160 and 161 deal with the encumbrances which a purchaser of the entire tenure cannot avoid except under certain conditions. Section 162 says:

When a decree has been passed for an arrear of rent due for a tenure or holding, and the decree-holder applies under Section 235 [Order 21, Rule 112] Civil P.C., for the attachment and sale of the tenure or holding in execution of the decree, he shall produce a statement showing the pargana, estate and village in which the land comprised in the tenure or holding is situate, the yearly rent payable for the same arid the total amount recoverable under the decree.

5. This section also shows that attachment and sale of the entire holding was contemplated in execution of a decree for rent. In does not appear from any of the provisions of the chapter that a portion of the holding could be sold in execution of a decree for rent. We think, therefore, the contention of the petitioners should prevail. The point raised, however, is not covered by authority. It should seem, however, that there are observations in the case of Chandra Sekhar Patra v. Rani Manjhee (1899) 3 C.W.N. 386 which would indirectly lend support to the view we take. There the question arose that, where a rent decree had been obtained and the defaulting tenure was attached, whether the provisions of Section 170 could apply? The learned Judges held that Section 170 applied and made the following observations which are pertinent to the present question:

The lower Court has held that, as a matter of fact, he had attached the tenure in respect of which the arrears had been decreed. Some question has been raised before us to the effect that what was attached was not the tenure, but interest of the judgment-debtor in the land. Looking, however, at the terms of the application, we are not prepared to say that the attachment was not of the tenure itself.

6. From these observations one can infer that if it could be shown in that case that the interest of the judgment-debtor in the tenure and not the tenure was attached, the Court would have answered the question in the negative and would have held that Section 170 had no application to such a case. Whether I am right in drawing this inference or not from those observations, for the considerations to which I have referred as to the scope of Ch. 14, I think the Subordinate Judge’s view is wrong.

7. Although Section 170, Bengal Tenancy Act, does not bar the entertainment of the claim in the present case, Order 21, Rule 58, Civil P.C., cannot govern the present case and the petitioners are not competent to perfer an objection to the attachment under the provisions of the said Rule. The petitioners, as I shall show presently, are representatives of the judgment-debtors within the meaning of Section 47, Civil P.C., and objections to attachment raised by a party to the suit in which the decree under execution was passed or by his representative fall with in the scope of Section 47. Objections to attachment raised by a third party come under Order 21, Section 58.

8. The tenure in question is admittedly a patni tenure. By Section 3 of the Patni Regulation (8 of 1819) the tenure is
capable of being transferred by sale, gift or otherwise, at the discretion of the holder, as well as answerable for his personal debts, and subject to the process of the Courts of Judicature in the same manner as other real property.

9. By Section 5 of the regulation, the transfer, however, is subject to the payment of fee and security to the landlord, and until the conditions mentioned in the said section are fulfilled, the landlord has a right to
refuse to register, and otherwise to give effect to such alienations, by discharging the party transferring his interest from personal responsibility, and by accepting engagements of the transferee.

10. It is open to the transferee to seek his remedy in the civil Court to compel the zemindar to give effect to the transfer if the security tendered is not accepted by the landlord. But until the registration of his name has been effected the transfer does not affect the zamindar’s right and, in spite of the transfer, the landlord may ignore the transferee and may continue to hold the recorded tenant responsible for the rent and other obligations imposed upon the tenure. As has been pointed out by Sir Comer Petheram, C.J., in Joykrishna Mukhopadhya v. Sarfannessa (1888) 15 Cal. 345 that until the fee (as required by Section 5) has been paid, the zamindar shall not be bound to register the transfer and further than that, until the transfer has been registered he shall not be bound to recognize the transfer in any way; that is to say, until his demand has been satisfied and the registration has been effected, the old tenant remains his tenant.

11. Their Lordships of the Judicial Committee in the case of Luckhinarain Mitter v. Khettro Pal Singh Roy (1873) 20 W.R. 380 laid down that until the assignment has been registered or the assignee has been accepted by the patnidar as his tenant, the assignor is not discharged from liability and such liability may be enforced by the sale of the darpatni in execution of a decree against him for the rent.

12. In the present case the petitioners, who have purchased the judgment-debtor’s interest prior to the decree for rent obtained by the landlord are bound: by that decree and as such are representatives of the judgment-debtors within, the meaning of Section 47, Civil P.C. This; view is in consonance with the view taken by this Court in the case of Surendra Narain Singh v. Gopi Sundari Dasi (1873) 20 W.R. 380. The petitioners, therefore, being representatives of the judgment-debtors, can raise objections to the attachment under Section 47 of the Code. They cannot, as we have already stated, raise objections to the attachment under Order 21, Rule 58, as they cannot be said to claim the property on their own account as a. third party (not being a party to the suitor his. representatives) could raise. It has been suggested to us by the learned advocate for the petitioners that their application before the lower Court might be treated as one under Section 47 of the Code and dealt with as such, but we are not prepared to do that, as the objections, under Section 47 might not stand on the same-footing as objections to the claim under Order 21, Rule 58. The former class of objection may cover other and different grounds. We, therefore, discharge the present Rule, and in doing so we observe that it will be open to the petitioners, if so advised, to raise objection to the attachment in question under Section 47, Civil P.C.

13. In the circumstances of the present, case each party will bear his own costs.

14. This judgment will govern Rule No. 953 of 1926.

15. Let the records be sent down at once.

Panton, J.

16. I agree.

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