Lal Inderjit Nath Sahido vs Maharaja Pratap Udai Nath Sahido and Others

Fazl Ali, J.—This is an appeal from an order of the Judicial Commissioner of Ranchi affirming an order of the Rent Suit Deputy Collector of Ranchi in an execution proceeding. The decree sought to be executed appears to have been obtained by respondent l, the Maharaja of Chota Nagpur, against a number of cosharer tenure-holders. The Maharaja at first tried to execute it as a rent decree, but it was found on inquiry that some of the cosharers had not been made parties to the suit and hence on 7th May 1940 the Maharaja applied to the Rent Suit Deputy Collector to sell the interest of the judgment-debtors u/s 210, Clause (2), Chota Nagpur Tenancy Act. The application was resisted by the appellant on several grounds, one of which was that the decree-holder could not proceed u/s 210, Clause (2). This objection, however, as well as the other objections raised on behalf of the appellant have been negatived and hence this appeal Section 210, Clause (2) has been recently amended and it now runs thus:

Notwithstanding anything contained in Sub-scetion (1) when the Deputy Commissioner passes a decree for an arrear of rent due in respect of a tenure the decree-holder may, with the permission of the Deputy Commissioner, granted for reasons to be recorded in writing, proceed against any other property, moveable or immovable of the judgment-debtor, without first making application for the sale of the tenure in respect of which the arrear has accrued.

Now, prima facie, it would appear that the words "any other property" which occur in this clause must mean any property other than the tenure itself. As in the present case, the decree-holder wishes to proceed not against the whole tenure, but only against the right, title and interest of the judgment-debtors in the tenure, it is contended that the requirements of the clause are fully satisfied. At first sight it would appear that the framers of the Act could not have contemplated this fine distinction between the tenure itself and the right, title and interest of the judgment-debtors in the tenure, but assuming that such distinction exists and the words "any other property" may be regarded as comprehensive enough to cover the right, title and interest of the judgment-debtors in the tenure, that will not solve the difficulty which stands in the way of the decree-holder in the present case. It is clear from the language of the amended section that one of the requisites of this provision is that the decree must be a decree for arrears of rent due in respect of a tenure, that is to say, it must be a rent decree in the sense in which that expression has been understood in all the important decisions under the Chota Nagpur Tenancy Act. Mr. Mullick who appears on behalf of the appellant conceded this and his contention was that the decree-holder is entitled to execute-the present decree u/s 198, Chota Nagpur Tenancy Act. That section runs as follows:

In execution of any decree or order by the Deputy Commissioner under this Act for the payment of money, not being money due or recoverable as an arrear of rent, if satisfaction of the decree or order cannot be obtained by execution against the person or moveable property of the debtor within the district in which the suit was instituted, the judgment-creditor may apply for execution against any immovable property belonging to such debtor; and such immovable property may, with the sanction of the Commissioner, but not otherwise, be brought to sale in the manner provided in Clause (b) of Section 210.

Now, as the sum for which the decree has been passed is not recoverable as an arrear of rent, the decree must be regarded as a decree for payment of money. In my opinion therefore Section 198 is intended to cover a case like the present. This section contemplates that where a decree sought to be executed is a decree for payment of money, the judgment-debtor may apply for execution against any immovable property belonging to the debtor. The words "any immovable property" which are used in this section are obviously wider than the words "any other immovable property" which occur in Section 210. Therefore if Section 198 could be made to apply to the present case, there would be no difficulty in the decree-holder''s proceeding against the right title and interest of the judgment-debtors in the tenure. But it is to be noted that Section 198 clearly provides that the immovable property may be sold only with the sanction of the Commissioner but not otherwise. We have been informed that in the present case the Commissioner''s sanction has not been obtained and consequently the property cannot be sold at present. Another serious question which arises in this case is that of limitation. Section 181, Chota Nagpur Tenancy Act, provides:

No application for the execution of a decree or order passed by the Deputy Commissioner under this Act shall be entertained unless such application be made within three years from the date on which the decree or order is signed or where there has been an appeal or review of judgment from the date of the final decree or order of the appellate Court or the date of the decision passed on the review.

As there appears to have been no appeal or review in the present case, it is clear that the case is governed by the first part of the section. Now, as has been already stated, though the original application for execution was made on 12th August 1937, that is to say, within three years of the date of the decree, the present application by which the decree-holder seeks to proceed against the right, title and interest of the judgment-debtor under Sub-section (2) of Section 210, was made on 7th May 1940, that is to say more than three years after the date of the decree. It is contended on behalf of the appellant that the present application is in effect a fresh application for execution because it is an application for a relief other than the relief claimed in the original application of 12th August 1937. To support his contention the learned advocate for the appellant relies on Maharaj Bahadur Singh v. A.H. Forbes AIR 1929 P.C. 209 and Maharaja Bahadur Ram Ranbijaya Prasad Singh Vs. Kesho Prasad Singh and Another, . The test which seems to have been laid down in both these cases for determining whether a certain application should be deemed in law to be a fresh application for execution or not is to find out whether the first application has been substantially abandoned and whether the effect of the subsequent application marks such substantial departure from the original application as to make it impossible to hold that it was a continuation thereof. According to these decisions in either case the subsequent application must be regarded as a fresh application for execution. Now whichever of these tests we might apply in this case the second application has to be treated as a fresh application for execution. As I have already stated, the decree-holder originally wished to proceed against the entire tenure on the assumption that the decree passed in his favour was a rent decree. Subsequently when it was discovered that the decree was not a rent decree and the entire tenure could not be sold, he asked the Court to sell the right, title and interest of the judgment-debtors only, treating the right, title and interest of the judgment-debtors as property other than the tenure against which he wished to proceed in the first instance. It is clear that by making the new application the decree-holder substantially abandoned the only prayer which he had made in his original application. In any event the second application has made "substantial departure," from the prayer which was made by him in his original application. Again in view of Section 198 the property which the decree-holder. now wishes to sell can be sold only with the sanction of the Commissioner and it therefore seems to me that if the decree-holder were to make any application after obtaining the sanction of the Commissioner, that application must be regarded as a fresh application for execution.

Mr. De who appears on behalf of the respondent drew our attention to the decision of this Court in Lal Inderjit Nath Sahi Deo Vs. maharaja Pratap Udai Nath Sah Deo and Others, , but that case has no bearing upon the facts of the present case. At first I was inclined to think that under the Chota Nagpur Tenancy Act, which is a self-contained statute, when the first application for execution is made within three -years of the decree, the subsequent applications may be regarded as applications made in continuation of the first application. On a further consideration however I am constrained to hold that the principle laid down in the cases already referred to must apply to decrees passed under the Chota Nagpur Tenancy Act also. Cleurly the policy of the Act is not to allow the tenant judgment debtor to be unduly harassed by long execution proceedings and I am unable to hold that an application to execute a decree as a money decree is not essentially different from an application to execute it as a rent decree. I would therefore allow this appeal. In the circumstances of the case however there will be no order for costs.

Shearer J.

I agree.