AI Structured Summary
Not yet generated for this judgment
Judgment
Rowland, J.—This appeal by the judgment-debtors arises out of an application to execute a decree, against which objection was taken and allowed by the Munsif. On appeal the decision was reversed and execution directed to proceed. The decree in question was obtained in the Rent Court on 11th July 1932 by the Maharaja of Chota Nagpur in respect of the rent of a tenure held by a number of cosharers. On application by the decree-holder, the decree was transferred to the Munsif of Ranchi for execution, and execution proceedings were started on 19th January 1933, against nine judgment-debtors, seeking a sale of five properties. The properties under attachment were proclaimed for sale; but on 16th April 1934 an order of the Commissioner u/s 2, Chota Nagpur Encumbered Estates Act, 1876, protecting from sale the property of judgment-debtor 9, Lal Gokulnath Sahi Deo, was received in the Court. In the meantime some amounts of cash had been realised in the course of the execution, and the Munsif ordered on the same date that the execution case be dismissed on part satisfaction with costs. The next step taken was the presentation on 23rd December 1935 of the application to execute the decree out of which the present appeal arises. Notices were issued to the judgment-debtors named in the application under Order 21, Rule 22, Civil P.C. Thereafter the names of five of the judgment-debtors named in the application were expunged from it.
It is contended that the Civil Court had no jurisdiction to execute the decree at all, the order of transfer to the Civil Court having been incompetent. As against the objection that the transfer of the application to the Civil Court was without jurisdiction, Mr. De, for the respondent, points out that this very matter was agitated and was decided against the judgment-debtors in the earlier execution, that an appeal was presented from that decision and failed, and therefore he contends that it is no longer open to the judgment-debtors to raise it, the principle of res judicata being a bar to the contention. On this point Mr. De''s argument must be accepted. It is supported by the decision of the Privy Council in AIR 1936 46 (Privy Council) . The Court before whom the previous execution was presented may or may not have taken a wrong view of law, but the same parties are not entitled to agitate that matter again between themselves.
The next and principal objection taken is that the application to execute the decree having been presented on 23rd December 1935, whereas the decree was obtained on 11th July 1932, is barred by limitation under the provisions of Section 181, Chota Nagpur Tenancy Act, which prescribes a three years'' period from the date on which the decree or order is signed. The Munsif allowed this objection holding that the application was a fresh application in execution presented after the period of three years laid down in the statute. As to this point, Mr. De, for the respondent, has contended that Section 181, Chota Nagpur Tenancy Act, has no application to this case. He argues that the suit having been transferred to the Civil Court, the decree-holder is entitled subject to the provisions of Article 182 of the Schedule to the Limitation Act, to execute his decree at any time within 12 years of its passing, u/s 48, Civil Procedure Code.
It is necessary therefore to say something on the question of the legality of transferring decrees of the Deputy Commissioner to the Civil Court for execution and the consequences of such transfers. The transfer purported to be made u/s 182, Chota Nagpur Tenancy Act, the terms of which are
a decree or order passed by a Deputy Commissioner under this Act may be executed either by his own Court or by any other prescribed Court.
"Deputy Commissioner" in this Section includes any Deputy Collector trying a rent suit; and a ''prescribed Court,'' .under he Government notification, includes the successor in office of the Deputy Commissioner who passed the decree, and includes any Court to which the "Deputy Commissioner of the District" transfers the application for execution; "Deputy Commissioner of the District" is explained as meaning the actual Deputy Commissioner for the time being. For the appellants, it is contended that this power of transferring only extends to transferring an execution application to a revenue officer having powers under the Chota Nagpur Tenancy Act. A doubt was expressed by Macpherson J. in (Maharaja) Pratap Udai Nath Sahi Deo Vs. Baraik Lal Sahi and Others, whether the Deputy Commissioner of the District himself had power to transfer the decree of a revenue officer to the Court of a Munsif; but the point was not directly before him, as in that case the Deputy Commissioner of the district had not passed any such order of transfer. I may however point out that if nothing more than transfer from one Revenue Court to another is authorized by Section 182 and the notification, these provisions appear superfluous, for such transfers can be made under other Sections of the Act. The expression "Deputy Commissioner" is used generally in the Act in referring to the Court dealing with suits and applications under the Act and is thus defined in Section 3(viii):
"Deputy Commissioner," in any provision of this Act, includes:
(a) any Revenue Officer or Deputy Collector who is specially empowered by the Local Government to discharge any of the functions of a Deputy Commissioner under that provision; and
(b) any Deputy Collector to whom the Deputy Commissioner may, by general or special order, transfer any of his functions under that provision.
In Section 137 a general power is given to the Deputy Commissioner to withdraw any suit (application or proceeding) from any Deputy Collector or revenue officer who is exercising power of the Deputy Commissioner under this Act, and may try it himself or transfer it to any Deputy Collector. Perhaps "the Deputy Commissioner" in this context ''means the Deputy Commissioner of the District; if not, there would seem to be some overlapping of this Section with Section 269 which runs:
A revenue officer may at any time transfer any pending suit, application or proceeding under this Act from the file of any revenue officer acting under this Act to the file of any other revenue officer so acting who is duly authorized to entertain and decide such suit, application or proceeding.
When there is such abundant power of transfer to a "Deputy Commissioner", Deputy Collector or Revenue Officer, it Would appear that Section 182 and the notification regarding maintainability of an execution case in a prescribed Court must be given a wider meaning. In Chandra Nath Tewari v. Protap Udai Nath A.I.R (1914) . Cal. 611 reference was made to possible execution proceedings "in the ordinary Civil Court" or "in a Civil Court competent to execute such a decree" and although the words there used may be considered to be of the nature of obiter dicta, it is said to be the ordinary practice that the Civil Court accepts and deals with execution cases transferred to it by the Deputy Commissioner of the District. It is impossible to say that only a Rent Court or Deputy Commissioner can hear proceedings under the Act for the Act itself provides instances to the contrary. Section 87(1), Proviso 1, empowers the Revenue Officer, subject to Section 264 and rules, to transfer certain cases to a competent Civil Court for trial; Section 182 and the notification thereunder do not in terms restrict the power of transfer to a power of transfer to a revenue Court; Section 139 which gives to the Deputy Commissioner exclusive jurisdiction (save as otherwise provided in the Act) over certain classes of cases, contains a proviso (inserted in 1920) that the Deputy Commissioner, may subject to rule, transfer suits-or applications to a competent Civil Court. It does not therefore appear that the judgment-debtors could have succeeded in their objection to the jurisdiction of the Civil Court to entertain the execution, even if this objection had been open to them in the present proceeding.
Mr. De further argued that the result would be that once an application is before a Civil Court, it will lose its character as a proceeding under the Act and will be governed by all the rules and statutes which regulate the procedure of the Civil Court, including the CPC (Section 48), the Limitation Act (Article 182 and 181), rather than the Chota Nagpur Tenancy Act (Section 181 and Section 231 to which I shall come later). He presses on our notice the difficult position which might arise for a decree-holder, should a different view be taken, and refers to Harbans Singh v. Jagdishwar Dayal Singh A.I.R (1929) . Pat. 188, a decision affirmed by the Judicial Committee of the Privy Council in AIR 1933 122 (Privy Council) . In that case the plaintiffs who were among the persons interested in the tenure not having been impleaded in a rent suit recovered possession of their shares which had been sold at an auction sale purporting to be held u/s 208. In the course of his judgment Das J. (with James J. concurring) had said:
Now if I am right in saying that a rent suit could not be instituted against defendants 2, 3 and 4, then it must follow that the Deputy Commissioner''s Court had no jurisdiction to pass a rent decree against defendants 2, 3 and 4.
The above decision was affirmed by the Judicial Committee of the Privy Council in AIR 1933 122 (Privy Council) and at one place in their judgment their Lordships have referred to the sale as being "not made under this Chapter" (Ch. 16) and outside the jurisdiction of the Court." Following that decision Macpherson J. in Joyti Prasad Singh Deo Vs. Tara Sankar Chattarji and Others, said that a sale of a tenancy purporting to be u/s 208, but in a case in which the conditions of that Section were not satisfied was entirely without jurisdiction and he said:
The sale of the tenancy u/s 208 being without jurisdiction did not affect the interest of any of the judgment-debtors.
Mr. De says that if these words are given their full meaning, then a decree obtained by a landlord in circumstances which did not entitle him to proceed to sale of the tenure u/s 208, would appear not to be executable under Ch. 16 of" the Act at all, and that if taken in the character of a decree for money it, should be executable according to the procedure of the ordinary Civil Courts in executing money decree. That contention seems to be founded in part on the language used in Chandra Nath Tewari v. Protap Udai Nath A.I.R (1914) Cal. 611 above cited but mainly on the words I have cited from the judgment of Das J. But the expressions "rent suit", and "rent decree" are popular expressions which can be used in more than one sense; and before pressing the dictum of Das J. to what may appear its logical conclusion we must be sure what the words mean in this context. Rent is defined in the Act, Section 3(23):
"Rent" means whatever is lawfully payable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant, and includes all dues (other than personal services) which are recoverable under any enactment for the time being in force as if they were rent.
Every suit to recover money due on (account of rent is in one sense a rent suit; where several tenants are joint promisors, such a suit can be instituted against one or more of them and decreed for the entire sum due as held in Kesho Prasad Singh v. Shamnandan Rai A.I.R (1926) . Pat. 504 and many other cases. Such a suit is cognizable by the Rent Court only, Section 139(3), and it is impossible to believe that the learned Judge thought that such a suit could not be instituted or could not be decreed. What he was dealing with was the consequences of the decree passed, which might be a decree both against the judgment-debtor and against the holding or tenure, or a decree against the judgment-debtor only. The context makes it clear that by the words "rent decree" a decree binding on the tenure was intended, and he meant that the Court could not pass a decree executable u/s 208.
It does not follow that the Court''s decree is not executable under the Rent Act, because it is a decree against the judgment-debtor and not against the holding or tenure, and is found to be not executable by sale of the tenure u/s 208. The claim for money due on account of rent, which was the cause of action in the suit is one in respect of which Section 139, Chota Nagpur Tenancy Act, confers exclusive jurisdiction on the Deputy Commissioner, i.e. on the Rent Court. But, it is not the only kind of suit over which that Court has exclusive jurisdiction. Suits for arrears of anything payable in respect of pasturage, forest produce, fishery etc. are exclusively cognizable by the Revenue Court; but decrees passed in such suits may in many, if not all, cases be only executable as personal decrees. Suits against agents employed in the management of land for money received or for accounts are also exclusively cognizable in the Revenue Court. These suits can only in the last resort issue in the passing of a decree for payment of money. Section 142(1)(a) permits a cosharer landlord to sue to recover from a tenant his share of the rent. In such a suit the remedy u/s 208 is not open to him, but the decree does not cease to be a decree under the Act. I need not multiply instances but may turn next to the provisions of the Act dealing with execution. There are a number of remedies provided, besides the special remedy given in Section 208.
The first Section dealing with the method of execution is Section 184, which enacts that processes may be issued "against either the person or the property of a judgment-debtor but shall not be issued simultaneously against both person and property;" succeeding Sections provide exemption of certain particulars from attachment (Section 186), methods of seizure and sale of moveable property (Section 187 etc.), and of execution by arrest (Section 191). It therefore by no means follows that because a decree can only be executed as a money decree its execution is not governed by the provisions of Ch. 16. There is, furthermore, provision in Section 198 permitting execution of a decree, of the Deputy Commissioner for payment of money (not being money due or recoverable as an arrear of rent) to be under certain conditions carried out by bringing to sale the immovable property of the debtor in accordance with the provisions of Section 210. If the permission of the Deputy Commissioner is obtained under this Section, it would seem that a sale could be held u/s 210 notwithstanding that sale u/s 208 had not been or could not be first resorted to.
Except for the observations of Das J. which, as we have seen, can be explained, there is nothing in the decisions of this Court and of the Privy Council in Harbans Singh v. Jagdishwar Dayal Singh A.I.R (1929) . Pat. 188 and AIR 1933 122 (Privy Council) bearing on the matter before us. We were shown a number of decisions regarding sales held in execution of decrees passed in rent suits against some only of the tenants, and the interpretation placed on the Privy Council''s pronouncement by Macpherson J. in Joyti Prasad Singh Deo Vs. Tara Sankar Chattarji and Others, was referred to. Whether that interpretation is warranted by the earlier decision seems to have been doubted by James and Dhavle JJ. in Bhagwat Prasad v. Sudarsan Bhagat A.I.R (1937) . Pat. 621, and the precise effect of a non-joinder on a rent sale may require to be further examined, when necessary. But, on any view as to the validity of a sale purporting to be u/s 208, I can find nothing in any of these decisions to support the proposition that unless the decree-holder is allowed to execute his decree by a procedure foreign to the Act he is left without a remedy at all. There are other remedies under the Act.
Moreover, we are not without direct authority as to the procedure governing execution of a decree passed under the Act when it has been transferred to a Civil Court for execution. In Nayamat Ram v. Rameshar Nath A.I.R (1928) . Pat. 144, the contention was raised that by getting his decree transferred to the Civil Court a decree-holder could avoid the restrictions and limitations governing execution under the Act, in particular Section 181-A. The contention was negatived. The decision in Sudhanya Kumar v. Gouranga Chandra A.I.R (1917) . Cal. 7 supports the view there taken. In (Maharaja) Pratap Udai Nath Sahi Deo Vs. Baraik Lal Sahi and Others, above cited, Macpherson J. was of opinion that the limitation for an application to execute a decree would be that provided by Section 181 of the Act even if the decree had been lawfully transferred to a Civil Court for execution. Following these decisions, I hold that Section 181 bars the execution if it is a fresh application.
But it is contended by Mr. De that this is no fresh application but merely a continuation or revivor of the execution previously instituted in which proceedings were taken up to 16th April 1934. Mr. De relies on Qaruddin Ahmad v. Jawahir Lal (1905) 27 All. 334 in which it was held that a decree-holder, who had for a longish period been prevented from pursuing an execution owning to objections which had been allowed in the Court below, but of which he'' finally obtained the dismissal in appeal, was not compelled to institute a fresh execution but could be permitted to revive the proceedings which might be regarded as being suspended while the parties were litigating as to their maintainability, notwithstanding that an order had been passed by the executing Court which was represented as being an order finally disposing of the execution. Their Lordships considered the terms of that order and said that it was in no sense a final order. The decision of their Lordships therefore was based partly on the terms of the order and partly on the circumstances of the case.
We have, been referred to a number of cases in which a prayer to treat previous executions as being merely suspended and revived has been either allowed or refused; but most of these cases seem to lay down no new principle and it will be sufficient to refer to the Full Bench decision of the Allahabad High Court in Mohammad Taqi Khan Vs. Raja Ram and Others, . The Full Bench considered an order passed in the following terms: "Execution struck off for partial satisfaction of the decree; costs on judgment-debtor." This order was read by the Judges as being a final order, and it was held that limitation applied accordingly and that the succeeding application to execute the decree was to be treated as a fresh application. I think the ircumstances of that case are more analogous to those before us than the circumstances of the Privy Council decision which I have cited. The order of 16th April 1934 was to the effect that the execution case be dismissed on part satisfaction with costs; and it is difficult to distinguish the form of this order from that which was before the Full Bench in the Allahabad High Court. A similar order was considered by a Division Bench of this Court in Misc. Appeal Pratap Udai Nath Sahi Deo v. Jagat Udai Nath Misc Appeal No. 267 of 1937 decided on 22nd April 1938, by Fazl Ali and Chatterji JJ. Here, as in the case before us, the occasion for stopping the execution proceedings was that the Commissioner had passed an order prohibiting the sale u/s 2(b), Chota Nagpur Encumbered Estates Act, the holder of the property having applied for protection. The Deputy Collector, before whom the execution proceedings were pending, passed an order striking off the execution. Against that order an appeal was preferred to the High Court, because if that order stood, it was apprehended that the execution proceedings having been finally disposed of, a subsequent application to execute would be considered to be barred by limitation. Their Lordships in this Court thought it necessary to interefere and vacated the order passed by the Deputy Collector. In lieu thereof they directed the proceedings will be restored and will remain pending till the final order is passed upon the application made by the judgment-debtors u/s 2, Chota Nagpur Encumbered Estates Act.
No such thing was done in the case before us. The order of the Munsif, dated 16th April 1934, on its face was an order finally disposing of the execution case. The Munsif was not moved to review that order, nor was any appeal presented to any superior Court to revise or vacate it. In my opinion, it was a final order disposing of the execution, and the application presented on 23rd December 1935 must be considered to be a new application and to be barred by limitation. Assuming that we took another view and held that the former execution was merely suspended from 16th April 1934 onwards, then on that view it would be necessary to see what was the period of limitation governing an application to revive and resume the old execution proceeding. According to Mr. De the proceedings of the CPC and the Limitation Act having become applicable to this case by virtue of its transfer to the Munsif, he would have three years from 16th April 1934 to present an application to renew the old execution. But if the whole of these proceedings are governed by the Chota Nagpur Tenancy Act, then limitation also will be in accordance with that Act. In the Limitation Act an application of this nature is dealt with under the residuary Article 181, in which the period is three years. Section 230, Chota Nagpur Tenancy Act, applies the provisions of the Limitation Act to suits etc. under the Act "so far as they are not inconsistent with this Act." Where the two Acts differ, intention clearly is that the special and local Act is to prevail. There is a residuary provision in the Chota Nagpur Tenancy Act�Section 231. Subject to certain exceptions entered in the proviso, the Section enacts that all suits and applications under the Act, for which no period of limitation is provided elsewhere in the Act, are to be commenced and made respectively within one year from the date of the accruing of the cause of action.
I need not repeat my reasons for holding that the present proceedings are proceedings under the Tenancy Act and are governed by its provisions, including those fixing special periods of limitation. It is clear that Section 231 must apply; that the last date for the respondent to present an application was 16th April 1935, and that on this computation he is more than six months beyond time, even if this can be treated as an application to restore the previous execution. The result is that I would allow the appeal, set aside the order of the Subordinate Judge and restore that of the Munsif. The appellant will have his costs here and below.
Yarma J.
I agree. On the two points urged by Mr. Chaudhury, one on the question of limitation and the other that the decree by a Rent Suit Deputy Collector cannot be executed by a Munsif of a Civil Court. I do not want to take much time over the latter question, because as has been pointed out by my learned brother, the appellant is estopped by the principle of res judicata. So far as the question of limitation is concerned, Mr. Choudhury has relied upon Sections 181 and 231, Chota Nagpur Tenancy Act. In order to meet the argument of Mr. Choudhury, Mr. De has tried to show that the procedure before the Munsif would be governed by the CPC and not the Chota Nagpur Tenancy Act, and for that purpose he has relied in his argument to a very great extent upon the interpretation placed on the Privy Council decision in AIR 1933 122 (Privy Council) and Jyoti Prasad Singh v. Tarasankar Chatterji A.I.R (1933) . Pat. 537 in this Court. In that case their Lordships of the Judicial Committee were dealing with the facts of that particular case and also with the decision of this Court which went in appeal before them. All the parties were not represented in the suit and their Lordships came to the conclusion that the sale that took place was not a sale u/s 208, Chota Nagpur Tenancy Act, on the principle that the tenure was not fully represented before the Court. I would like to quote the observations of their Lordships as to the result of a decree in which the tenure is not fully represented. Towards the latter portion of their judgment they say, after giving their opinion, as follows:
If, as already stated, it is not competent to order a sale of the tenure u/s 208 unless the whole interests in the tenure are represented before the Court, it is clear that the order for sale of the tenure in the present case was ultra vires of the Revenue Court, and it follows that the sale was not "made under this chapter" and was outside the jurisdiction of that Court." This view is confirmed by an examination of the terms of the decree of 1920 for arrears of rent, for the claim decreed is "on account of arrears of rent and cesses with interest in respect of khorposh held by the defendants in mauza Madan Bindra, Rano and Chareya.
Then comes the important portion of the decision, as to what would be the result of a decree in which the tenure is not fully represented.
And the decree is thus only apt to attach the interest of the defendants in the tenure, and is no sufficient warrant for a sale of the whole tenure u/s 208.
I was a party to the decision in Second Appeal No. 660 of Manki Kank Ratan Vs. Sundarmunda and Others, in which this case was referred to, but that appeal was decided especially with reference to Section 11, Chota Nagpur Tenancy Act, as to what the effect will be if a landlord''s name is not registered. I agree that the appeal should be allowed and the judgment of the lower Appellate Court set aside and that of the learned Munsif restored.