Authored By : Digamber Chatterjee, Thomas William Richardson

Digamber Chatterjee, J.

1. The appellant obtained a decree for arrears of rent onthe 19th of April 1905. The estate of the judgment-debtor was in charge of theEncumbered Estates Department at Manbhum from 23rd May 1906 to the 21st April1908, on which last date it was released.

2. The decree-holder applied for execution on the 13thFebruary 1909, i.e., more than three years from the date of the decree. Thejudgment-debtor pleads limitation, and the decree-holder seeks to save hisapplication from the bar, cm the ground that he was debarred by the provisionsof the Encumbered Estates Act, VI of 1876, from taking out execution during theperiod of the management under the Act. The Court below has given effect to theplea of the judgment-debtor, holding that, under a certain interpretation ofthe Act by the Legal Remembrancer of Bengal, followed by a legislativerecognition of that interpretation by the amendment of the Act of 1876, thedecree-holder was not debarred from executing his decree, and that theapplication is therefore barred.

3. On appeal it has been contended by the decree-holder thatthe lower Court is wrong. Section 3 of Act VI of 1876 enacted that, as soon asan estate is taken charge of under the Encumbered Estates Act, all proceedingspending in Civil Courts in respect of the debts and liabilities of thedisqualified owner shall be barred; he shall not be arrested for such debts;his moveable property shall not be attached by the Civil Court, and hisImmovable property shall be exempt from civil process. This was the state ofthe law when the Legal Remembrancer in 1908 gave an opinion that the words"Civil Courts" in the section meant Civil Courts pure and simple, anddid not include Revenue Courts dispensing civil justice, and the Act wasamended in 1909 by the addition of the words "Revenue Court," etc.The appellant contends, on the authority of Nilmoni Singh Deo v. TaranathMuherjee I.L.R.(1882) WB. 295 : L.R. 9 IndAp 174, that the words "CivilCourts" in Section 3 of Act VI of 1876 are comprehensive enough to includethe Revenue Courts deciding rent-suits and executing rent-decrees, that theopinion of the Legal Remembrancer is wrong, and that the amendment of Section 3by Act III of 1909 only clears up the meaning of the original section. On theother hand, it is contended by the respondents that the amendment shows thatthe Revenue Courts could not have been meant to be included in the words"Civil Courts." The object of the Act being to give relief toencumbered zemindars against all sorts of claim, it cannot for a moment bebelieved that the Legislature did not mean to keep the zemindar from all sortsof debts and liabilities, including rent-suits and decrees. The judgment oftheir Lordships of the Privy Council makes this quite clear, and any opinion ofMr. Chapman to the contrary is therefore wrong. The amendment under Section 4of Act III of 1909, B.C., was made for the purpose of meeting this difficultyand removing all doubts. The amendment virtually adopted the decision of thePrivy Council, and cannot be said to have altered the law. Under Section 12 ofthe Act the debts, etc., barred under Section 3 are revived when the, estate isreleased, and, as the release was in 1908, the application for execution in1909 was quite within time.

4. It also appears that the judgment-debtor mentioned thedecree of the decree-holder as one of his debts in his petition for reliefunder the Encumbered Estates Act in 1906. That might amount to anacknowledgment of debt by the judgment-debtor, which would most probably give afresh start to the decree-holder. If it were necessary to go into thisquestion, we should have remanded the case or called for further evidence, asthe documents containing these acknowledgments are not on the record, althoughthey are said to have been before the Court below. As, however, we hold for thedecree-holder on the first point, it is not necessary to remand the case. Theappeal is decreed with costs.

Thomas William Richardson, J.

5. I concur in my learned brothers conclusion. The debthere is a judgment-debt supported by a decree of a Revenue Court, being a Courtfor the recovery of rent. While the debtors estate was under the charge of theEncumbered Estates Department, the Court which passed the decree was, in myopinion, debarred from executing it by the provisions of Section 3 of theChota-Nagpur Encumbered Estates Act (VI of 1876) before that section wasamended by Act III(B.C.) of 1909. The mere fact that Revenue. Courts of thedescription in question are governed by a special procedure does not preventthem from being Civil Courts. The term "Civil Courts" is wide enough toinclude such Revenue Courts, although, for the purpose of the Civil ProcedureCode, the term "Revenue Courts" does not include Civil Courts of aparticular kind, namely, Civil Courts having original, jurisdiction under theCode to try rent-suits. To my mind there is nothing in Section 4A of the Codeof 1882, re-enacted in substance in Section 5 of the Code of 1908, which isinconsistent with the decision of the Privy Council in Nilmoni Singh Deo v.Taranath Mukerjee I.L.R. (1882) WB. 295 : L.R. 9 IndAp 174, that the RentCourts established by Act X of 1859 are Civil Courts. Section 4A was introducedinto the Code of 1882 in the year 1888, apparently for the purpose ofmitigating the consequence flowing from that decision, viz., that theprovisions of the Civil Procedure Code were capable of being applied to RentCourts (or Revenue Courts for the recovery of rent) in those matters ofprocedure as to which the special Acts creating them, or by which they weregoverned, were silent. The consequence, so far as it extends, is accepted inthe section, and, by way of mitigation, a power is given to the Governmentwhere provisions of the Code are applicable to Revenue Courts owing to thesilence of the special enactments relating to those Courts to declare that suchprovisions shall not apply to those Courts, or shall only apply to them withsuch modifications as may be prescribed.

6. In any case the Act of 1876, Avith which we are concernedhere, was passed before the decision of the Privy Council, and was not amendedin consequence of that decision. Nor does there appear to be anything in thelaw relating to the Rent Courts of Chota-Nagpur, which makes the principle ofthe Privy Council decision inapplicable to them. As to the amendment of the lawintroduced by Act III (B.C.) of 1909, I do not think it can have the effect oftaking out of the term "Civil Court," any Revenue Court previouslyincluded in that term, though it may have the effect of bringing within theoperation of Section 3 of the Encumbered Estates Act any Revenue Courts inBengal which are not also Civil Courts.

7. In regard to the provisions of Section 7 of theEncumbered Estates Act, it is clear that an execution barred by Section 3 isrevived by Section 12, and it is therefore unnecessary for the purpose of thepresent case, to consider the precise effect of the exclusion of "rent dueto the superior landlord" from the bar imposed by Section 7: KamesharPrasad v. Bhikhan Narain Sinah : 2 C.W.N. 498.

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Pratap Udainath Shah Deovs. Madan Mohan Nath Sabi(01.09.1910 - CALHC)