Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Kristo Ram Roy vs Janokee Nath Roy And Ors. on 27 July, 1881
Equivalent citations: (1881) ILR 7 Cal 748
Author: Field
Bench: Prinsep, Field


Field, J.

1. The question raised in these appeals is, whether a judgment-creditor, who has obtained a decree for arrears of rent due in respect of an under-tenure transferable by its own title-deeds or by the custom of the country, is bound to bring that under-tenure to sale in execution before he can proceed against the other immoveable property belonging to his judgment-debtor. There can be no doubt that if this question had to be answered under the old law, it must have been answered in the affirmative. Such is the effect of the decision in the case of Desaratulla v. Nawab Nazim Nazar Ali Khan (I. B. L. E., A. C. 217). It is contended that this decision is still applicable. Section 61 of Beng. Act VIII of 1869 enacts as follows in its last paragraph:

2. “If, after sale of any such under-tenure in execution of such decree, any portion of the amount decreed remains due, process may be applied for and issue against any other property, moveable or immoveable, belonging to the debtor.” Now, this is the first provision contained in the Act which allows execution to be taken out against immoveable property, and having regard to the point of time at which the judgment-creditor is here allowed to proceed against the debtor’s immoveable property, it may well seem that it was not the intention of the Legislature to allow, him to proceed against immoveable property, until after the sale of the under-tenure. This was in fact the construction placed upon Section 105 of Act X of 1859 by the decision to which I have just referred. But although, as I have said, the provision above quoted is the first specific provision in Beng. Act VIII of 1869 which allows process of execution to be taken out against immoveable property, there is another section in the Act which appears to have a very important bearing upon the question, that is Section 34, which enacts:— “Save as in this Act is otherwise provided, suits of every description brought for any cause of action arising under this Act, and all proceedings therein, shall be regulated by the Code of Civil Procedure.” The effect of the decision of their Lordships of the Privy Council in the case of Doolar Chand Sahoo v. Lall Chabul Ghand (3 C. L. B., 564) is, that that section extends to rent-suits the provisions of the Code of Civil Procedure concerning execution and the property which may be taken in execution; and that the result of this extension is, that a judgment-creditor, in a case such as that with which I am now dealing, has the option of proceeding either against the under-tenure or against the other moveable or immoveable property of his judgment-debtor. In that case the question before their Lordships was, whether what had been sold in execution of a rent-decree was the under-tenure itself or merely the right, title, and interest of the judgment-debtor. Their Lordships refer to Section 59 of Beng. Act VIII of 1869, and say:— “The Maharaja, if he had pleased, was authorized to apply for the sale of the tenure.” They then quote the words of that section, and proceed as follows:—” It appears, therefore, that although the Maharaja might, if he had pleased, have applied to sell the tenure in execution of his decree, he had also a power to proceed against other property of the defendant.” From this it appears to have been the opinion of their Lordships of the Privy Council, that the effect of Section 34 was, as I have already said, to give the judgment-creditor the option of proceeding to sell the under-tenure or proceeding against any other property of the judgment-debtor. It is deserving of notice that Sir BARNES PEACOCK, who was the Chief Justice of this Court, and who delivered the judgment in the case of Desaratulla (1 B. L. E. A. C. 217), was one of the Lords of the Privy Council who heard the case to which I have just referred; and this fact is strong to show that the old law, as settled by Desaratulla’s case (1 B. L. E., A. C. 217), was not overlooked in putting a construction upon the new Act of 1869, which incorporated, by reference, the provisions of the Code of Civil Procedure. It, therefore, appears to us that, as the law now stands, we must take it that the decision in the case quoted upon the old Section 105 of Act X of 1859, is not applicable to Sections 59 to 61 of Beng. Act VIII of 1869. The appeals will be dismissed with costs.

Prinsep, J.

3. I am of the same opinion. It appears to me that their Lordships of the Privy Council, in the judgment in Doolar Chand Sahoo v. Lall Chabul Ghand (3 C. L. R., 564) (the passage I refer to is to be found at page 564) held, that Section 34 of the Rent Act gave the Civil Courts a concurrent jurisdiction under the Code of Civil Procedure, and enabled a decree-holder, in a suit for arrears of rent, to proceed either under the general powers conferred under the Code or under the Rent Law. We must now accept the law as thus laid down. The appeals will be dismissed with costs.

Leave a Reply

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

66 queries in 0.288 seconds.