Bibi Sayeeda Khatoon vs Bishundeo Singh

Sinha, J.—This is a decree-holder''s second appeal against the decision of the learned Subordinate Judge of Gaya reversing that of the Munsif of Aurangabad in execution proceedings. The facts leading up to this appeal are as follows: The appellant obtained a decree for rent on 5th September 1939 against the respondent. The decree was put into execution on 21st August 1940 resulting in the sale of the judgment-debtor''s property. The judgment-debtor took proceedings to have the sale declared invalid and inoperative and ultimately it was decided by the appellate Court that the sale was a nullity inasmuch as notice u/s 148 (g), Bihar Tenancy Act, had not been either issued or served on the judgment-debtor. The order of the appellate Court declaring the sale to be a nullity was passed on 25th November 1942. Ultimately the execution case itself was dismissed on 2nd January 1943, apparently on account of the default of the decree-holder. Then the decree-holder took out the notice prescribed by Section 148 (g), Bihar Tenancy Act, which was served on 18th April 1943. A second execution case was then started on 3rd July 1943 praying for the same relief as had been claimed and obtained in the previous execution case. The judgment-debtor in the present execution case took the objection that the execution was barred by limitation on the ground that the first execution case was not in accordance with law because, it was said, that execution case was wholly void and ineffectual as was ultimately held by the appellate Court by its judgment referred to above. The learned Munsif before whom the execution proceeding was pending took the view that though the sale was a nullity for non-service of the notice u/s 148 (g), Bihar Tenancy Act, the execution case itself could not be said to be a nullity and that it was an application which was in accordance with law and therefore operated to save limitation. On appeal by the judgment-debtor the learned Subordinate Judge reversed that decision taking the view that the previous application was not in accordance with law inasmuch as the Court was not competent to do anything in connexion with that application for execution of the decree. Sence this second appeal by the decree-holder.

It has been contended by Mr. H. R. Kazimi appearing on behalf of the appellant that the learned Subordinate Judge has taken a wrong view of the effect of the previous execution case, started by the decree-holder, which resulted in the sale of the respondent''s property though that was declared to be inoperative by the appellate judgment aforesaid. He has relied upon a decision of Manohar Lall J. in Dwarika Singh Vs. Siri Kishun Singh and Others, . It has been laid down that the provisions of Section 148 (g), Bihar Tenancy Act, are directory and not mandatory and do not go to the root of the jurisdiction of the Court executing the decree. Hence in that case it was laid down that the non-service of the notice required under that section did not deprive the executing Court of the jurisdiction to sell the property of the judgment-debtor or entitle the judgment-debtor to ignore the sale as a nuljity or even to have it set aside on that ground. We are not sure whether that decision has taken ac count of the provisions of Section 158AA which is to the following effect:

(1) If, within the time mentioned in Clause (g) of Section 148, the judgment-debtor fails to pay to the decree-holder or deposit into Court the decretal amount, such amount may, upon an application made in this behalf by the decree-holder, be realised by the attachment and sale of the property of the judgment-debtor both moveable and immovable:

Provided that the moveable property of the judgment-debtor shall not without his consent in writing be so attached or sold unless the decree cannot be , satisfied by the attachment and sale of the holding for the arrears of the rent of which the decree was passed.

(2) The application referred to in Sub-section (1) shall be in the prescribed form, shall contain the prescribed particulars and shall state the mode in which the assistance of the Court is required.

Now, that section in effect provides that on the failure of the judgment-debtor to satisfy the decree passed against him within the period of grace allowed by Section 148 (g), Bihar Tenancy Act, it is open to the decree-holder to make an application for realizing by attachment and sale of the property of the judgment-debtor the decree passed in his favour. By Sub-section (2) that application has to be in the prescribed form. It may therefore be contended with a good deal of force that the jurisdiction to attach and sell the property of the judgment-debtor arises upon the default of the judgment-debtor as aforesaid and on an application being made by the decree-holder for the execution of the decree by attachment and sale of the judgment-debtor''s property. In this connexion the decision of Reuben J. in the unreported case in Ram Charan Singh v. Sreemati Janki Devi A. F. A. o. No. 152 of 1943 decided on 16th March 1944, may be referred to. His Lordship has taken the view that Section 158AA (wrongly said to be Section 148AA) lays stress on the realization of the decree by attachment and sale of the judgment-debtor''s property and not on the filing of an execution petition; that is to say, Section 158AA does not prohibit the filing of an execution petition, but only provides that the judgment-debtor should be given a further chance of complying with the terms of the decree against him before his property, moveable or immovable, could be put up to sale in realization of the decree against him. In my opinion that is the right view of the provisions of Section 158AA, Bihar Tenancy Act. Manohar Lall J. in his judgment aforesaid has made the following observations with reference to the provisions of Section 148 (g), Bihar Tenancy Act:

No provision is made in this section or in any other part of the Act that it is the service of this notice which confers jurisdiction on the exeouting Court to exeeute the decree, or in other words that the non-service of the notice debars the exeouting Court of its undoubted jurisdiction to sell the property of the judgment-debtor Or entitles the judgment-debtor to ignore the sale as a nullity and to have it set aside on the failure of serving him with such notice.

So far as these observations go, we respectfully agree; but his Lordship''s attention does not appear to have been drawn to the provisions of Section 1S8AA which does make a reference to an application for execution being made by the decree-holder on the happening of the event contemplated by Section 148 (g), Bihar Tenancy Act. But all the same the service of notice under s.,148 (g) of the Act has not been either by express legislation or by necessary implication made a condition precedent to the starting of an execution case by the decree-holder. Such a disability on the part of the decree-holder cannot be imported without express words in the statute. There are several reasons why this disability cannot be read into the provisions of the Bihar Tenancy Act. The period of limitation provided for executing the decree for rent is three years from the date of the decree. Supposing the Court which passed the decree, by inadvertence did not direct the issue of notice under that section with the result that no such notice was actually served on the judgment-debtor--what is the result of the non-issue and non-service of such a notice ? Can it be said that that would affect the period of limitation given by the statute to the decree-holder for the execution of his decree for rent? We may suppose that the decree-holder in the hypothetical case referred to comes to the executing Court on the very last day of limitation with an application for executing his decree. Is the executing Court entitled to throw out that application for execution on the ground that notice u/s 148 (g) had not been served ? In my opinion, this could not have been the intention of the Legislature when it made the provision in question. It could not have intended to shorten the period of limitation by enacting that the decree-holder must first have notice served u/s 148 (g) before he could make his application for the execution of the decree. Ordinarily, of course, where the rent Court is vigilant it would make a direction in accordance with the section at the time of the passing of the decree that notice under that section do issue; but a case may easily be contemplated in which the Court passing the decree for rent has omitted to make any such direction. Certainly the successful litigant cannot be penalised because the Court itself has omitted to perform its duty. It must followfrom what has been said above that where the decree-holder comes on the very last da''te of limitation with a prayer to execute his decree, the Court cannot throw out Ijis application for execution on the ground of non-service of notice u/s 148 (g), Bihar Tenancy Act. In such circumstances the only power given to the Court is to insist upon the decree-holder taking out a notice u/s 148 (g). Such a notice has to be taken and has to be served with a view to giving the judgment-debtor the opportunity of paying the decretal sum and if he does not avail himself of that opportunity, the law must take its course and the property must be sold in satisfaction of the decree.

Again, it may be pointed out that S.158AA speaks of attachment and sale of the property of the judgment-debtor, moveable and. immovable but execution may in certain circumstances be taken against the person of the judgment-debtor who is not a raiyat or an under raiyat. Such an execution would not be within the mischief of Section 158AA of the Act. Hence, in my opinion, these are the reasons for holding that the issue and service of notice u/s 148 (g), Bihar Tenancy Act, cannot be a condition precedent to the executing Court obtaining jurisdiction to proceed with the execution itself apart from its power to attach and sell the judgment-debtor''s property. As a result of all these considerations it must be held that the non-issue and non-service of the notice u/s 148 (g), Bihar Tenancy Act, is not a bar to the decree-holder putting in an application for execution of his decree. That being so, the previous execution in the present case taken out by the decree-holder was one in accordance with law and therefore the second execution case cannot be said to have been barred by limitation.

In the result the appeal is allowed and the orders of the lower appellate Court set aside and the execution case directed to proceed in accordance with law. The appellant is entitled to his costs here and in the Courts below.

Das, J.

I agree and I would like to add a few words. The main argument on behalf of the respondent before us is that the service of notice u/s 148 (g), Bihar Tenancy Act is a condition precedent to the maintainability of an application for execution of the decree u/s 158AA, Bihar Tenancy Act. The short answer to this argument is that the plain words used in Section 158AA, do not support such a contention. The words used in Section 158AA clearly say that the decretal amount may be realized by the attachment and sale of the property of the judgment-debtor, both moveable and im movable, when the judgment-debtor fails to pay to the decree-holder or deposit into Court the decretal amount within the time mentioned in Clause (g) of Section 148. The section nowhere lays down that an application execution cannot be made before the notice under cl. (g) of Section 148, Bihar Tenancy Act, has been served. It may be contended with some force that the property of the judgment-debtor can not be attached and sold before such a notice as is contemplated under Clause (g) of Section 148 has been served. It cannot, however, be con tended on the actual words used in Section 158AA, Bihar Tenancy Act, that an application in execution is not maintainable without the service of a notice under Clause (g) of Section 148. No time is fixed for the service of the notice under Clause (g) of Section 148, Bihar Tenancy Act. The issue of the notice will depend on the payment of the costs by the plaintiff. It depends on the Court to issue the notice. It could not be the intention that the usual period of limita tion given to a decree-holder for the execution of his decree will be curtailed by the, provi sions of Clause (g) of Section 148, Bihar Tenancy Act. No time limit,''having, been fixed for the issue of the notice under Clause (g) of Section 148, Bihar Tenancy Act,, there can be,nothing illegal if the notice under Clause (g), of Section 148. is served after the execution petition has been filed. In Rai Biman Bihari Mitra v. Sudama Singh. Meredith J. has held that s. 148 (g), Bihar Tenancy Act, casts no duty upon the "decree-holder, but upon the Court, to see that the notice is issued in time. The de cree-holder cannot be penalised because the Court has failed to do its duty. In that par ticular case the notice u/s 148 (g), Bihar Tenancy Act, was actually served after the application in execution had been filed and en tertained. Section 158AA does not prohibit the entertainment of an application for execution merely because the notice under Clause (g) of s. 148 has not been served. This, in my opi nion, is a sufficient answer to the argument that the first application for execution in this case was not an application in accordance with law.