Hari Mahton vs M. Syed Jamal Hossain

Fazl Ali, J.—These two appeals have been heard together because the points involved in them are identical. What those points are will appear from the following brief statement of facts.

The respondent is a landlord and it appears that on 22nd September 1936, he obtained two decrees against the appellant who is the same person in both appeals. These decrees were put into execution in 1987 and the entire holdings in regard to which rent had been claimed were sold in execution of the decrees leaving portions of the decrees still unsatisfied. In August 1939, the decree-holder again put both decrees in execution for the balance outstanding. Meanwhile in June 1939, the appellant judgment-debtor had applied under the Bihar Restoration of Bakasht Lands and Reduction of Arrears of Rent Act, 1938 (Act 9 of 1938) for the restoration of the lands sold in the previous execution cases. Orders for return of those lands were passed in September 1939, and upon payment of certain sums by the appellant, the lands were restored to him, He then applied before the Court of execution dawning that the entire decrees had been satisfied. That Court, however, rejected those applications and the orders passed by it were also affirmed in appeal by the District Judge. The appellant has now preferred these second miscellaneous appeals. The Preamble of Act 9 of 1938 shows that it was passed to provide "for the restoration to the former tenants of certain lands which were sold for arrears of rent between the first day of January 1929, and the thirty-first day of December 1937, on account of the inability of the tenantry to pay such arrears by reason of the unprecedented fall in prices between the said dates, and also for the reduction of arrears of rent in certain cases in the province of Bihar."

The Act, as its Preamble indicates, deals with two matters: (1) Restoration of lands sold for arrears of rent which is dealt with in Chap. II and (2) Reduction of arrears of rent which is dealt with in Chap. III. As we are concerned in this appeal only with the question of the restoration it is unnecessary to refer to the provisions which have been made in the Act for the reduction of arrears of rent. The only sections which need be referred to are Sections 3, 4, 5, 6 and 8. Section 3 provides that a raiyat, whose holding or a portion of whose holding was sold at any time between 1st January 1929, and 31st December 1937, in execution of a decree for arrears of rent and was purchased by the landlord of such holding and is in the possession or under the control of the said landlord, may make an application to the Collector for the restoration to him of such holding or portion within a period of one year from the date on which the section came into force. This section also states what should be the form and contents of the application. Section 4 enables the Collector to reject defective applications if the defect is not remedied within the time fixed by the Collector. Section 5 contains certain provisions as to giving notice to the landlord and Section 6 sets out the ground on which the landlord may object to the application. Section 8, which is the most important section for the purpose of this appeal, provides that if an application made by a raiyat is entertained, the Collector shall (a) determine the land which is liable to be restored to the raiyat under the provisions of this Act and (b) determine the amount which shall be payable by the raiyat for the restoration to him of such land. Then comes a proviso which runs as follows: Provided that such amount shall (i) in the case of an entire holding or, if only a portion of a holding was sold in the case of the whole of such portion, be a sum equal to the entire amount, if any, which the raiyat or any person having a claim against the raiyat may have withdrawn out of the proceeds of the sale of such holding or portion, and fifty per centum of the aggregate of the amount mentioned in the sale proclamation for the realisation of which the holding or portion was sold and of the amount of costs necessarily incurred by the landlord in connexion with his application for delivery of possession; and (ii) in the case of a portion of a holding, if the entire holding was sold, or a part of a potion, if only a portion of the holding was sold, be such part of the sum mentioned in Sub-clause (1) as the Collector may deem fair and equitable after considering all the circumstances of the case including the value of the entire land sold and of the portion to be restored.

Now, the points which have to be noted are (1) that in the present case the entire holdings were sold, and (2) that the holdings were sold for only part of the decretal amount with the result that nothing was withdrawn either by the judgment-debtor or by any other person in excess out of the sale proceeds. In other Words, the entire sale proceeds were taken by the decree-holder for the satisfaction of only a part of the decree. Thus, u/s 8 the appellant was entitled to the restoration of the lands on payment of only 50 per cent, of the aggregate of the amount mentioned in the sale proclamation for the realisation of which the holding was sold and of the costs incurred by the landlord.

The point which is raised on behalf of the appellant before me is that the order of restoration made by the Collector on payment of the amount required to be paid u/s 8 must be taken to have the effect of satisfying the entire decree and that the landlord decree-holder is not entitled to realise the balance of the decrees from him. The learned advocate for the appellant, who put his case with great clarity, contends that inasmuch as the Act was passed for the purpose of affording relief to the tenants who are unable to pay the entire decree by reason of the "unprecedented fall in prices" it could not have been within the contemplation of the Legislature that the landlord should be entitled to realise the balance of the decree even though the full amount payable under the Act for restoration of bakasht lands had been paid. The learned advocate in support of his argument tried to refer to the proceedings in the council which preceded the enactment of the Act in question. But as has been pointed out in many cases the sections of an Act must be construed on the basis of the plain words of the sections themselves and not with reference to what was said or done in the council before the Act was passed. In other words, as was observed by Noor, J., in 14 Pat. 7201 the Legislature must be taken to have meant what they have said and not what they contemplated to say but did not say.

The learned advocate relies upon two passages, one in Craies on Statute Law and the other on Maxwell on the Interpretation of Statutes. The first passage only reproduces an observation made by Bowen L.J. which is to the following effect:

In the construction of statutes you must not construe the words so to take away rights which already existed before the statute was passed, unless you have plain words which indicate that such was the intention of the Legislature.

In my opinion this general observation cannot be of any help to the appellants in this case, but it may help the respondent whose rights have been curtailed by the Act. The next passage which occurs in Maxwell is simply to this effect that although the Legislature is presumed to intend no alteration in the law beyond the immediate and specific purposes of the Act, these are considered as including all the incidents and consequences strictly resulting from the enactment. It is contended that the inference that the payment made for the restoration of bakasht lands will have the effect of satisfying the decree, necessarily follows from the enactment, because the enactment was intended to relieve the poor tenants. In my opinion, however, it is difficult to hold that the view put forward by the learned advocate is a necessary incident or consequence of the enactment.

It seems to me that the framers of the Act have probably by an oversight made no provision in the Act for a case like the present. In a vast majority of cases, decrees for rent are fully satisfied by the sale of the holding and the sale leaves a surplus in favour of the judgment-debtor after the satisfaction of the decretal amount. The framers of the Act undoubtedly had these cases in view and assumed that they had to legislate for these cases only. It does not seem to have occurred to them that in some cases a portion of the decretal amount only may be realised by the sale of a holding and perhaps that is why they have made no provisions whatsoever for such a case. This omission has led to this anomalous result that whereas if the entire decree had been satisfied by the sale of the present holdings the payment of half the amount mentioned in the sale proclamation and costs would have had the effect of satisfying the entire decretal dues, that is to say, in that case the deoretal dues would have been reduced to half the amount; but where only part of the decretal amount is satisfied, there being no express provision in the Act, the tenant has to pay at least the full decretal amount. It may be that if the g framers of the Act had in view a case like the present, they might have made some provisions for relieving the hardship of the tenant. But the Act is silent as to what is to be done in a case like the present and this Court can only construe and apply the Act and not supplement it by reading into its provisions which are not there. The difficulty has arisen in this case because the payment which is to be made u/s 8 is in essence a consideration for the restoration of the land and not a payment towards the decree which has already been satisfied. The Legislature having made provisions for those cases only where decrees have been satisfied did not find it necessary to provide for any payment towards the decrees which remain unsatisfied. In my opinion, therefore, upon the Act as it stands, it is difficult to hold that the entire decrees of the landlord have been satisfied and the landlord is not 7 entitled to proceed for the balance.

The second point which arises in this case is whether the landlord is entitled to realise from the tenant more than the decretal dues merely because the proceedings for the restoration of the lands have intervened between his first execution and the present execution. It is contended on behalf of the landlord that the amount which has been paid by the tenant cannot be taken into account in the present execution proceedings. Strictly speaking this view might be justified on the ground that the payment made for the restoration of the land was a consideration for the restoration and not a payment towards the decree. In my opinion, however, the landlord cannot be permitted to take up this inequitable attitude towards the tenant. The execution of the decree has been going on for sometime and the payment which has been made by the tenant in relation to the decree whether it was made in the execution proceeding itself or in the proceedings started by him for the restoration of the lands must be regarded as payment towards the decretal dues. This principle was not seriously contested by the learned advocate appearing for the respondent, but what he contended was that in fact what the appellant has paid for the restoration of his land is not 50 per cent, of the amount mentioned in the sale proclamation, but SO per cent, of the price fetched at the sale of the holdings. It is contended by him that both the Courts below have wrongly assumed that what was paid by the tenant was 50 per cent, of the amount mentioned in the sale proclamation. Prima facie, the contention seems to be a peculiar one, because as the lands have been restored, it must be presumed that they have been restored on the payment of the amount which is payable u/s 8. But this is a question of fact and I do not wish to express any opinion on the point and must leave it to the Court below to ascertain the amount which has been actually paid. All that I am concerned with, is that it should be made clear that the decree-holder cannot realise more than the decretal amount and he can execute his decree for such amount only as remains unpaid after deducting from the decretal amount the amount which has been paid by the appellant in the proceedings regarding the restoration of lands, after making allowance for the costs of the decrees. Subject to this modification, the appeals are dismissed. There will be no order as to costs. Leave to appeal under the Letters Patent is refused.