Babu Jugal Kishore and Another vs Musammat Sonabati Kumari

Ross, J.—This is an appeal against an order passed by the Subordinate Judge of Dumka striking off an application for execution. As the decree is still capable of -execution, there is no merit in the appeal against the order striking off the execution petition; because another execution petition can be brought; and, in this view, the appeal must be dismissed. The learned Counsel for the appellant has referred to an order passed on the 17th of July dealing with the question of the decree-holder''s right to proceed against rents accruing due in the time of the late ghatwal judgment-debtor, but unrealized. It is conceded by the learned Counsel for the respondent that the question did not properly arise for decision, inasmuch as the application for execution was an application for attachment of the Immovable property and for the appointment of a Receiver to collect the rents. The decision, therefore, cannot be res judicata. But, as the matter has been discussed, we think it right to express our opinion upon the question raised.

The learned Subordinate Judge said that as the ghatwali property, the rents of which are in question, is inalienable and impartible, the unrealized rents of the villages formed the corpus of the ghatwali property and could not be attached and alienated. This question has been dealt with by this Court in Aparna Debi and Another Vs. Shri Shri Shiva Prasad Singh, , where with reference to the decision of the Judicial Committee in Jagdama Kumari Singh v. Wasir Narain Singh 77 Ind. Cas. 1041 : 2 Pat. 319 : AIR 1923 P.C. 59 : 44 M.L.J. 503 : 37 C.L.J. 287 : 32 M.L.T. 157 : 4 P.L.T. 319 : 25 Bom. L.R. 676 : 18 L.W. 555 : 28 C.W.N. 98 : 20 C.W.N. 460 : 50 I.A. 1 it was observed that it had been held by the Judicial Committee that the produce of an impartible estate does not necessarily belong to and form an accretion to the original property. It was pointed out in the case now quoted that there was no evidence that the late Raja treated the produce of the estate as an accretion. With regard to the distinction which was sought to be drawn between realized and unrealized rents, it was pointed out that rent which had become due was produce of the impartible estate, whether the produce had actually come into the hands of the owner or not, and that there was no distinction between realized rent and unrealized rent in this respect. This decision was followed by the Calcutta High Court in (Rani) Prayag Kumari Debi and Others Vs. Siva Prosad Singh, , Learned Counsel for the respondents contends that a distinction must be drawn between an ordinary impartible estate and a ghatwali, because an ordinary impartible estate is alienable where as a ghativali is inalienable; and he argues that the rents and profits of a ghatwali estate would be subject to different incidents. But there is nothing in the special ghatwali law of inalienability to affect the question whether these unrealized ''rents are corpus of the estate or not. Consequently it would appear that the decision of the Subordinate Judge on this question is erroneous ; but this matter only arises incidentally in the present appeal, because the question discussed by the Subordinate Judge did not properly arise on the application then made and ought not to have been dealt with.

With these observations the appeal is dismissed with costs.

Das, J.

I agree.