Authored By : Kamal Chunder Chunder, Blank

Kamal Chunder Chunder, J.

1. These appeals are by some of the judgment-debtors in anexecution case against an order of the Subordinate Judge, First Court, Hooghly.

2. Lot Bhastara Putni Mehal was held by some of the Mukherjeesof Uttarpara. At the material time, there were three groups of putnidars. Thefirst group comprised Jaharlal and Pannalal, two sons of Sures ChandraMukherjee. They had one-sixth share each. Pannalal having died after the suit,but before the execution of the decree, his share was first inherited by hisson, and then by his grandson, Pranab Mukherjee. Pranab being a minor, hisone-sixth share was under the Court of Wards at the time of the presentexecution proceedings. Another group of one-third cosharers comprised DurgaCharan, Satya Charan and Ambika Charan Mukherjee, descendants of Paresh ChandraMukherjee who were at one time wards of Court, but at the time of the presentexecution, their estate had been released. They are appellants in Appeal No.52. The third group consisted of Probal Mukherjee, son of Raj Mohan Mukherjee,on whose death at the time of the execution, his sons Ramdas Mukherjee andothers were the putnidars. They are appellants in Appeal No. 9.

3. It appears that the one-third share of Jahar and Pannalalwere in arrears. Separate accounts had been opened with the zamindar and itappears that the other two thirds cosharers had paid up their rent, but thelandlord had to sue all the putnidars in Rent Suit No. 2 of 1942, and he obtaineda decree which was first executed in Execution case No. 7 of 1945. The Court ofWards objected to the execution of the decree under S. 10-C, Court of WardsAct, and the Subordinate Judge by his order No. 45, dated 10th March 1947, (Ex.2(a)) allowed the objection holding that S. 10-C, Court of Wards Act would be abar to that execution proceeding, at least so far as the share under the Courtof Wards was concerned. At this an objection was taken by the remainingjudgment-debtors that the decree could not be executed in the absence of theexcluded co-sharers. The Subordinate Judge by his order, dated 30th May 1947,allowed this objection, and the execution case was struck off.

4. The landlord filed another execution, Rent Execution caseNo. 5 of 1947, on 9th September 1947 which is the subject-matter of thisappeal. He excluded the one-sixth share of the minor who was then under theCourt of Wards, and limited his claim to five-sixths of the decree, and heasked for five-sixths share of the tenure of the other putnidars to be put upto sale. The judgment-debtors objected The Subordinate Judge, First Court,Hooghly, by his judgment, dated 22nd December 1947, overruled the objections,and against this the two appeals have been filed by the two sets of judgment-debtorsas mentioned before.

5. The first point that has been taken by Mr. Chakravartiappearing on behalf of the judgment-debtors is that the present proceeding inexecution is barred by res judicata by reason of the previous order, dated 30thMay 1947, in Rent Execution Case No. 7 of 1945. It is necessary to quote therelevant portion of the decision:

It is not disputed that in view of the provisions of S.168-A, Bengal Tenancy Act the decree in this case which was passed for arrearsof rent due in respect of the tenure cannot be executed except by the sale ofthe entire tenure in question. But as the names of some of the judgment-debtorshave been struck off by the order passed in Misc. Case No. 8/47 in view of theprovisions of S. 10-C, Court of Wards Act, 1879, their interest cannot pass byany sale held in this case. So in their absence and in view of the provisionsof S. 10-C of the said Act, the entire tenure cannot be sold as required underS. 168-A, Bengal Tenancy Act. Hence the objection is allowed but without anyorders as to costs. The execution case be struck off with costs as being notmaintainable.

It is apparent that the question whether the execution is tobe taken against the entire tenure, or could be limited only to the shares of thepersons against whom the decree was being executed was not in question at allbefore the Sub-ordinate Judge in that execution case. The decree-holders rightto proceed against five sixths of the tenure was not at all in issue in thatexecution case. So the incidental decision that the execution is to be againstthe entire tenure was only an incidental decision, and therefore, no questionof res judicata arises.

6. The next question which has been urged is that thedecree-holder cannot at his option break up the liability without the consentof the judgment-debtors. There is nothing in law to prevent a decree-holderfrom giving up part of his claim and executing his decree only for a portion.He certainly cannot split up his claim and ask for separate executionproceedings to be started in regard to each particular portion of the claim,but there is nothing to prevent him from starting execution proceedings withregard to part of the claim provided that he does not proceed with the otherpart. Subsequently, he is not allowed in law to proceed with the part which wasnot proceeded with before. Therefore, in the present case, there is nothing inlaw to prevent the decree-holder from relinquishing one-sixth share of thedecretal dues and proceeding with five-sixths of his dues.

7. The third point which was stressed is the reallyinteresting point, viz., whether the decree-holder under S. 168-A BengalTenancy Act can limit execution to a part of the tenure, or whether he has gotto bring the whole sixteen annas of the tenure to sale; in other words what isthe meaning of the words "entire tenure."

8. Section 168-A, Bengal Tenancy Act first goes on to saythat a decree for arrears of rent due in respect of a tenure or holding,whether having the effect of a rent decree or a money decree etc. shall not beexecuted by the attachment and sale of any movable or immovable property otherthan the entire tenure or holding to which the decree or certificate relates.And secondly, it goes on to say in cl. (b) of sub-s. (1) that the purchaser atsuch a sale shall be liable to pay to the decree-holder the balance of thedecretal dues not realised by the sale as also:

any rent which may have become payable to the decree-holderbetween the date of the institution of the suit and that date of theconfirmation the sale.

9. The question what is meant by entire tenure or holdingcame up for decision previously before some single Judges of this Court. In adecision reported in Shaik Abdur Rasheed v. Maharajah Srish Chandra Nandy,: 48 C.W.N. 172 : (A.I.R. 1944 Cal. 301) [LQ/CalHC/1943/160] , Henderson J.pointed out that on a previous occasion, he had held that S. 168-A, BengalTenancy Act was to help the tenants and not the landlords. The learned Judgesaid-

The use of the word entire shows the limits which areplaced upon the right of the decree-holder. To hold that although a decree canbe satisfied by the sale of a small portion of the holding, the decree holderagainst his own wishes and in spite of the protest of the judgment-debtor iscompelled to bring the whole tenure to sale, would be to the disadvantage ofthe tenant.

He, therefore, followed his previous unreported decision.The matter again came up before G.N. Das J. in an unreported decision, printedat p. 5, Part. II of the paper book, in which the learned Judge followed thedecision of Henderson J. in the above case. He pointed out that S. 168A spokeof decrees for arrears of rent, whether having the effect of a rent decree or amoney decree which contemplated a decree which was obtained against some of thejudgment-debtors. The learned Judge then said,

If the literal sense of the words entire tenure to whichthe decree relates used in S. 168A is given effect to, it would compel thedecree-holder to levy execution not merely against the judgment-debtors againstwhom the decree for rent was obtained in respect of their interest in thetenure, but also in respect of the interest in the tenure owned by persons notparties to the decree. Such a construction of S. 168A, Ben. Ten. Act would notbe reasonable.

With these observations of the learned Judges, we are infull agreement.

10. Mr. Chakravarti has contended that it would createanomaly in view of cl. (b) of S.168A(1) by which the purchaser would be liableto pay the balance of the decretal dues as also the rent payable to thedecree-holder for a period sub-sequent to the institution of the suit leadingto the tale. He has also urged that this will cause hardship to theauction-purchaser. The short reply to this is that the auction-purchaser hasthe option not to purchase under such terms whilst the hardship that will becaused to the judgment-debtors, as pointed out by G.N. Das J. would be one inwhich they would have no option. When an auction purchaser makes a purchase ofa part of a tenure or holding, he will know what he is purchasing and what hewill be required to pay for it, and if he so wishes, he need not purchase thesame. Secondly, the wording in cl. (b) of sub S. (1) is "any rent whichmay have become payable to the decree-holder" etc. It does not say rentfor what share. If the entire tenure or holding is merely a term showing thelimit and if the whole includes the part, then there is nothing to prevent aninterpretation that the rent payable will be rent payable for the interest thatis sold by the decree-holder. In our view, the two decisions of the SingleJudges, referred to before, were right, and cl. (a) of S. 168A(1) means thatthe decree-holder cannot proceed against any other property of thejudgment-debtor or judgment-debtors, but he must confine himself only to thetenure or holding. That is the limit. Beyond that he cannot go. But within thelimit of the tenure or holding, there is nothing, in our opinion, to preventhim from further limiting the sale to the interest or interests of thejudgment-debtor or judgment-debtors against whom he is proceeding, as this willbe for the protection of tenants and will save tenants from harassment. Underthe circumstances, the contentions urged by Mr. Chakravarti must fail.

11. Finally, it has been argued by Mr. Chakravarti, and Mr.Mukherji, appearing for the appellants in Appeal No. 52, that by an arrangementbetween the putnidars, the cosharers divided the mouzas amongst themselves.Separate accounts were opened in the zamindars sherista, but there was nosplitting up of the tenure or sub-division under S. 88, Ben. Ten Act. PronabMukherjee whose estate was under the Court of Wards possessed exclusively 35mauzas. The contention is that by executing the decree against five-sixthsinterest in the tenure, the interest of Pronab would be affected, as theauction purchaser would have an interest also in the mehals in the directpossession of the Court of Wards on behalf of Pronab and this will be againstS. 10-c, Court of Wards Act. It was pointed out by a Divisional Bench of thisCourt in Promode Chandra Singha v. Narendra Narayan Majumdar, : 66 C.L.J. 321 : (A.I.R. 1938 Cal. 297) [LQ/CalHC/1937/134] that S. 10-c, Court of Wards Act isfor the protection of the minor under the Court of Wards and is not for theprotection of other co-judgment-debtors. Secondly, it may be pointed out thatit will be a question between the auction-purchaser and the Court of Wards whenthe auction-purchaser takes possession of the interest he has purchased. Itwill be a question of what the five-sixths interest is that he has purchased.Therefore, as far as the present execution proceedings are concerned, S. 10-cis no bar. Under the circumstances, the order of the Subordinate Judge beingright is upheld, and both the appeals are dismissed, each party bearing its owncosts in this Court. The amount deposited for staying execution of the decreewill be adjusted against the decretal dues.

Blank, J.

12. I agree.

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Ramdas Mukhopadhyay and Ors. vs. Uday Chand Mahatab Bahadurand Ors. (25.11.1948 - CALHC)