Kedar Nath and Another vs Samru Kazi and Others

Fazl Ali, J.—The only question to be decided in this appeal is whether Section 148(h), Bengal Tenancy Act, is a bar to the execution of the decree which is sought to be executed by the appellants. It appears that the decree, in question was a decree for rent and was passed; m favour of Maksudan Bhagat and others on 20th April 1931. The decree-holders assigned the degree in favour of the appellants on 20th March 1934 having previous to that sold their interest in the zamindari to the superior landlord on 5th January 1933.

The appellants thereupon applied for execution on 27th April 1935. The Court of first instance held, that in view of the fact that the original decree holders had parted with their interest as landlords after the passing of the decree, it Could be executed only as a money decree and'' therefore Section 148(h), Bengal Tenancy Act, did not bar execution. The lower Appellate Court however has reversed this decision and held that, the execution is barred. The assignees have therefore preferred this appeal.

In the course of the argument before us, it was contended that the original decree obtained by Maksudan Bhagat and others must be treated as a money decree) because the suit related only to a portion of the holding. The Munsif did not accept this contention on the ground that there were no materials before him to support it. The point does not appear to have been raised again before the lower Appellate Court and that fact by itself should be enough to preclude the appellant from raising it. But on a perusal of the application for execution it is clear that the decree was sought to be executed as a rent decree and there are also certain statements made in that petition which indicate that the decree bad been obtained'' against the entire holding.

4.There remains only the question as to whether: the landlords having'' parted with their interest before the execution was applied for, the decree is exempt from the bar of Section 148(h).

On this point I heed only refer to three recent decisions of the Calcutta High Court in Gopendraprasad Shukul and Others Vs. Ramkishore Shaha, , Niharbala Debi Vs. Shashadhar Ray Chaudhuri, and Ranimuddi Lupti v. Jogendra Kumar Singha 1931.54C.L.J. 596. The view propounded in these cases is that the assignee of a decree for arrears of rent who has not obtained assignment of the landlords'' interest cannot make an application to execute the decree even as a simple decree for money under the Civil Procedure Code. This view is supported by very weighty arguments with which I fully agree. I would accordingly dismiss his appeal with costs.

Rowland, J.

I agree.