Badrinarayan Chetlangia vs Satya Kishore Banerjee

Das, J.—These three appeals arise out of certain proceedings in execution of decrees for rent. They are directed against a decision of Sri Bikash Chandra Ghose, learned Subordinate Judge, Nadia, dated March 20, 1952.

The properties in respect of which the rent suits were instituted were patni tenures situate partly in the Indian Union and partly in Eastern Pakistan. In these rent suits, the Appellant, who was the sole Defendant, entered appearance and filed written statements disputing the jurisdiction of the court to pass decrees in regard to the rents apportionable to the properties in Eastern Pakistan. Unfortunately, when the cases came to trial the Defendant did not appear and ex parte decrees were made. It may be noted that the claims for rent in these suits were for periods subsequent to the partition of India. The claims due under these decrees for rent not having been paid, the decree-holders instituted proceedings in execution of those decrees. In these execution proceedings objections were raised on behalf of the judgment-debtor Appellant.

The first objection taken was that the court at Nadia which passed the decrees for rent had no jurisdiction to pass decrees for the entire rents claimed. It was argued by Mr. Mitter who has appeared in support of the appeal that an Indian court had no jurisdiction to decree a claim for rent in respect of properties in Eastern Pakistan. Reliance was placed on a decision of the Judicial Committee in the case of Nilkantha Balwant Natu v. Vidya Narasinh Bharati (1930) L.R. 67 IndAp 194. The question as to the effect of a lease for rent concerning properties in the Indian Union and properties in foreign territories need not, however, be gone into in this case. As I have pointed out, the jurisdiction of the court to pass the decrees was specifically challenged. The court passed eat parte decrees. On principles which have been laid down by the Supreme Court in the case of Mohan Lal Goenka v. Benoy Krishna Mukherji (1953) S.O.R. 377, it must be held that the re-agitation of this question is barred by principles of constructive res judicata. I desire to make it clear that the decision of this point in the rent suits with which we are now concerned must be regarded as limited to the claims in these rent suits. As the decision went ex parte, it cannot be suggested that the. decision was intended to operate for all time to come but was limited to the period''s then in suit. The first contention raised by Mr. Mitter must, therefore, be overruled.

The second contention raised by Mr. Mitter turns on an interpretation of Section 168A of the Bengal Tenancy Act. The prayer in these execution proceedings is a prayer for equitable execution by appointment of a receiver. So far as this Court is concerned, it was decided by a Special Bench of this Court in the case of Sudhir Krishna Ghose v. Satish Chandra Hui (1943) 48 C.W.N. 835 that a receiver may be appointed for purposes of realisation of sums due under a decree for rent. It is contended that the decision of the Special Bench may require consideration in view of the decision of the Supreme Court in the case of Union of India v. Hira Debi (1952) S.C.A. 323. In the Special Bench case, the property in respect of which a receiver was sought to be appointed was a property other than the tenure in arrears. In the present case, however, we are relieved of the duty of deciding the contention raised by Mr. Mitter, because the prayer in the present case is confined to an appointment of a receiver in regard to the patni taluq that was in arrears. Section 168A of the Bengal Tenancy Act renders unattachable and unsellable any moveable or immoveable property of the judgment-debtor other than the tenure or holding to which the decree relates. It does not prevent attachment and sale of the entire tenure to which the decree relates. There is, therefore, no scope for the application of the rule enunciated by the Supreme Court in the case of Union of India v. Hira Debi (supra).

Mr. Mitter next argued that as the tenure is available and may be brought to sale, the court should not direct the appointment of a receiver. That the court has power to direct the appointment of a receiver even though the tenure is available for sale was decided in the affirmative in the case of Midnapore Zemindary Company Ltd. v. Kumar Chandra Sing Dhudhuria (1947) 52 C.W.N. 736. There is, therefore, no legal bar to the executing court directing execution of the decree by appointment of a receiver in respect of the tenure in arrears. It is undoubtedly true, as was held in the case of Hemendra Nath Roy Choudhury v. Prahash Chandra Ghose (1930) 35 C. W. N. 1066, that the appointment of a receiver in execution is regulated by the provisions of Section 51(d) and Order XL, Rule 1 of the Code of Civil Procedure. The question, therefore, is whether it is just and convenient that a receiver should be appointed in order to enable the decree-holder to realise the sums decreed in his favour. Mr. Mitter contends that the patni-taluq comprises 45 mouzds out of which 34 mouzds are situate in the Indian Union and 11 in Eastern Pakistan; and as such no receiver should be appointed in order to realise the arrears of rent which were due in respect of the properties situate both in the Indian Union and Eastern Pakistan. As the learned Subordinate Judge has pointed out, the decree-holder had to pay revenue and other Government dues in respect of the zemindary interest under which the patni is held. The rents have remained unpaid for a long time. There is no machinery now for selling the entire patni tenure in arrears, a part of it being in Eastern Pakistan. In these circumstances, it is difficult to hold that the learned Subordinate Judge did not exercise his discretion properly in appointing a receiver in respect of the properties situate within the Union of India, that is, 34 mouzds referred to above.

The question, h6wever, remains as to whether the terms on which the receiver has been appointed by the court below should be maintained or varied. The learned Subordinate Judge acted rightly in appointing the judgment-debtor Badrinarain Chetlangia as receiver. The directions given by him, however, require some modifications. In my opinion, the appointment of Badrinarain Chetlangia as receiver must date from the date of the order of the learned Subordinate Judge, that is, from March 20, 1952. Badrinarain Chetlangia would be a receiver only in respect of the 34 mouzds situate in the Indian Union. He would be liable to account for the income of these mouzds since the date of his appointment as also for the arrears of rents, cesses due from the tenants which were unrealised and recoverable on March 20, 1952. I desire to make it clear that the direction of the Subordinate judge that the receiver was liable to account for all arrears realised by him even prior to his appointment as receiver should be vacated. The receiver will have to pay the patni rents due in respect of the mehal in respect of which the rent decrees now under execution were passed. He will also have to pay the rents and cesses since the date of the decrees but limited to the 34 mouzds in respect of which he has been appointed a receiver. In this Court the Appellant filed petitions annexing thereto an order apportioning the rent. That order, however, does not apportion the liabilities of the patnidar in respect of other dues. The receiver will take necessary directions from the court below as to the amount of rents and cesses properly apportion able to the 34 mauzds in respect of which the Appellant has been appointed a receiver, and also in all other matters.

The learned Subordinate Judge has directed that the Appellant who is himself a co-sharer zemindar will have to forego the rents to which he is entitled in respect of his zemindary right. This direction seems to us to be somewhat inexplicable and must be vacated.

In the result, these appeals succeed in part but having regard to the facts of these cases I direct that the parties do bear their own costs in this Court.

No order is necessary in the applications filed in this Court.

Debabrata Mookebjee, J.

I agree.