Kumar Krishna Mukherjee vs Amarendra Lal Khan

P.N. Mookerjee, J.—This is the decree-holder''s appeal arising out of a proceeding u/s 47 of the Code of Civil Procedure. The decree under execution was passed in Rent Suit No. 4 of 1941 of the court of the First Subordinate Judge, Midnapore. The date of the decree is August 13, 1941. Prior to the present execution, it was sought to be enforced on six occasions, namely, in rent execution cases Nos. 3 of 1942, 8 of 1942, 1 of 1944, 7 of 1948, 7 of 1951 and 1 of 1953. But all those attempts of the decree-holder were unsuccessful and no part of the decretal dues was realised. On August 10, 1903, the present execution case No. 8 of 1953 was filed. It was within twelve years of the date of the decree and the prayer made in it, was for attachment and sale of other properties of the judgment-debtor than the defaulting tenure. Objection was taken to this execution on the grounds inter alia that the execution was barred by limitation and that it was also barred u/s 168A of the Bengal Tenancy Act.

On the question of limitation, the learned Subordinate Judge found in favour of the decree-holder and there can be no doubt that his decision on the point is right. The present execution case was admittedly filed within twelve years of the date of the decree and also within three years of the disposal of the last execution case which was also of the same year, namely, 1953. No question of limitation can, therefore, arise so far as the present execution case is concerned.

On Section 168A of the Bengal Tenancy Act, the decree-holder came forward with the plea that the tauzi, under which the defaulting tenure lay, had been attached by the Collector u/s 99 of the Cess Act, and, accordingly, rents of the under tenants were payable to the Collector and would not be payable to the purchaser of the putni in the event of a sale in execution of the decree and so, contended the decree-holder, the defaulting putni was unavailable for sale. On this plea, he sought to evade the bar of Section 168A to the present execution case against the other properties of the judgment-debtor. The decree-holder''s plea was overruled by the learned Subordinate Judge as, in his view, Section 168A would apply and bar the execution unless the case could be brought under the proviso of Sub-section (1) of that section and attachment u/s 99 of the Cess Act was not enough for the purpose. The proviso requires that in order that it may be attracted and the decree-holder be entitled to proceed against the other properties of. the judgment-debtor than the defaulting tenure, the term of the tenancy must have expired in some manner other than by surrender before an application is made for the execution of the decree. The learned Subordinate Judge has held that merely because the superior touzi had been attached and the putnidar was unable or disentitled to realise any rent from the tenants under the putni and such rents were to be paid to the Collector under the attachment, the term of the putni cannot be said to have expired. The putni still subsists and, accordingly, the proviso cannot be attracted. In our opinion, this view is entirely correct. The attachment u/s 99 may, for some period, disentitle the putnidar or any person who might purchase the putni-tenuis in execution of the present decree from realising rents from the tenants under the putni or from receiving the profits thereof, but it does not certainly mean extinguishment of the putni or the expiry of its term so as to bring the case within the proviso which requires that the term of the tenancy must have expired. In this view, the decision of the learned Subordinate Judge should be affirmed.

Mr. Mitter, however, appearing for the decree-holder-Appellant, raised a further contention on account of the vesting of the superior estate and also of the defaulting tenure in the State by virtue of the Estates Acquisition Act of 1954. This vesting is not denied on behalf of the judgment-debtor. But, admittedly, this vesting has taken place subsequent to the present application for execution and, accordingly, Mr. Majumdar, on behalf of the judgment-debtor, contends that the proviso would not be attracted. As we have already said, the proviso requires that the term of the defaulting tenure must have expired before an application is made for the execution of the decree. Whatever difference might exist as to the interpretation of the words "an application", namely, whether it means the initial application for the execution of the decree (vide Atul Chandra Chakrawarti and Ors. v. Upendra Narayan Mukhopadhyaya (1942) 46 C.W.N. 684.) or the particular application for execution in which the proviso is claimed to be attracted (vide Sm. Swarnamanjuri Dassi v. Fakir Chandra Karar and Ors. (1943) 48 C.W.N. 220) under either view there can be no doubt that, in the present case, the proviso would not apply because admittedly there was no vesting of the tenure in the Government prior to the making of the present application for execution. The last part of the proviso, therefore, that "the term of the defaulting tenure "must have expired before an application is made for the "execution of the decree" cannot be satisfied in the present case and, accordingly, the proviso cannot be availed of here by the decree-holder. This is enough to dispose of Mr. Mitter''s argument on the effect of vesting under the Estates Acquisition Act in the present case on Section 168A and the Appellant-decree-holder cannot by reason of such vesting, be held entitled to proceed against the other properties of the judgment-debtor in the present execution case. A question now arises as what should be the proper order to be passed in the present case in view of the particular facts and circumstances before us. There is no question that if the present execution case is dismissed, the decree-holder''s remedy to realise the decrials dues will be gone for ever as no further or fresh execution can be levied within the period of twelve years as contemplated by Section 48 of the Code of Civil Procedure. That period is long past. The dismissal of the execution case, therefore, would prejudice the decree-holder beyond recompense and the decree-holder''s dues would be altogether lost. We are not prepared to inflict that extreme penalty on the decree-holder-Appellant in the circumstances of this case. We would, therefore, while maintaining the order of the learned Subordinate Judge that the present execution case in its present form cannot proceed, allow the decree-holder liberty to amend his application for execution so as to bring it in conformity with Section 168A of the Bengal Tenancy Act and to proceed thereafter in accordance with law. If any such Amendment is made, that will be treated as a continuation of the present execution case and no question of limitation will be allowed to be raised by the judgment-debor to the amended execution application so as to defeat the purpose of that Amendment.

Subject as above, this appeal is dismissed and the order of the learned Subordinate Judge is affirmed.

The judgment-debtor-Respondent will be entitled to his costs of the present proceedings from the Appellant-decree-holder, the hearing fee being assessed at five gold mohurs.

Saekaer J.

I agree.