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Calcutta High Court
Shambhu Nath Singh vs Sheo Proshad Singh And Ors. on 14 January, 1913
Equivalent citations: 18 Ind Cas 689
Author: L Jenkins
Bench: L Jenkins, R Harington, Stephen, A Mookerjee, Holmwood


1. This second appeal arises out of an application under Section 47 of the Code. The judgment-debtor objected to execution which was disallowed. The appellant is the admitted landlord of a village. He granted a ticca of it to certain persons which expired on the 15th June 1908. During the pendency of the lease, the ticcadars obtained a rent decree. This they assigned to the appellant on the 12th June 1908. three days before the expiration of their ticca. On the 22nd September 1903, the assignee appellant took out execution. The respondents judgment-debtors contended that the appellant was not entitled to execute the decree by reason of the provisions of Section 148(h) of the Bengal Tenancy Act which runs as follows: “Notwithstanding anything contained in Section 232 of the Code of Civil Procedure, 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.” The application for execution was refused by both Courts on the authority of the decision in Dwarka Nath Sen v. Peari Mohun Sen 10. W.N. 694. This case appeals to us in point notwithstanding certain distinctions which are sought to be made, viz., that there the assignment was after and not before the expiration of the term of the lease and there was a third party. The principle of that decision appears to be that the meaning of the word landlord” in the phrase “unless the landlord’s interest in the land, etc.,” has the same limited significance as the term “landlord” in the preceding part of the clause. If this be so, then the word “landlord” in this case refers to the ticcadars and as the ticcadars or assignors’ interest had expired, it was not vested in the appellant at the time of his application for execution. On the other hand, the learned Pleader for the appellant relies on the decision, Jagat Tarini Dasi v. Rakhal Chandra Tewary 10 C.L.J. 396 at pp. 402, 403; 3 Ind. Cas. 324; 14 C.W.N. 752 where it was said that the section does not speak of the assignor’s interest, but of the landlord’s interest. It is contended on behalf of the appellant that the term “landlord” in the phrase cited means the person who at the date of execution is entitled to receive rent from the tenant in whatsoever way such right may be vested in him including the present case where the landlord, by the execution of the ticca, divested himself of the right to collect rent which again became vested in him on the expiration of the ticca. This appears to us to be a reasonable view of the section and to meet its policy which was, as we conceive it, to secure that strangers to the land should not be allowed to speculate in decrees for rent and possibly harass the tenant, and that the only person who could execute was the person who at the time of execution was entitled by reason of a vested landlord’s interest to demand rent. The later decision sought to distinguish the authority on which the lower Courts have relied on the ground that the determination of a lease for a term was different in its legal consequences from the purchase of a permanent tenure such as a patni and the annulment of a darpatni. We are unable, however, to draw any distinction of principle between this and the earlier case which appears to us to proceed on the ground that the landlord’s interest in Section 148(h), means only the assignor or decree-holder’s interest. We, therefore, refer to the Full Bench the question:

2. Whether by the term “landlord’s interest” in Section 148(h), of the Bengal Tenancy Act, is meant only the assignor or decree-holder’s interest or the interest of a person entitled to receive rent from the tenant at the date of execution of the decree.

3. Babus Jogesh Chandra Ray and Biraj Mohan Mojamdar, for the Appellant.

4. Mr. Ashgar, Counsel, Babu Saroda Prasueno Ray and Moulvi Muhammad Yusuf, for the Respondents.


Lawrence Jenkins, C.J.

5. We are of opinion that by the term “landlord’s interest” in Section 148, Clause (h) of the Bengal Tenancy Act is meant the interest of the person entitled to receive the rent from the tenant at the date of the application for the execution of the decree. The result is that the appeal is allowed, and the execution will proceed in the usual way.

6. The appellants are entitled to the costs of this Court including the costs of this reference and the costs in the lower Appellate Court. We assess the hearing fee in this Court at two gold mohurs for each hearing.

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