Laxmi Narayan Panda vs Panchanan Khan and Others

Ramaswami, J.—The appeal is brought from the order of a Rent Suit Deputy Collector in an execution case. The plaintiff had obtained a decree for rent against one Taracharan Deb Mandal with respect to a chandana holding. In execution of the decree, the holding was advertised for sale. Before the sale took place the? respondent Panchanan Khan appeared, alleged that he had purchased the holding, and asked for permission to deposit the decretal amount. The decree-holder however objected that he did not recognise the transfer of the chandana holding and the respondent was not entitled to make deposit. The Rent Suit Deputy Collector upheld the objection and refused to permit the respondent to make the deposit or release the holding from attachment.

In appeal the Collector considered that the respondent could make the deposit under Order 21, Rule 55, Civil P.C. He reversed the order of the Deputy Collector and directed that the payment should be accepted and the holding released from attachment. Against this order the decree-holder has instituted this appeal.

Two arguments were addressed on behalf of the appellant. In the first place it was contended that the appellate Court was erroneous to hold that the respondent could make the deposit under Order 21, Rule 55, Civil P.C. It was argued that chap. 16, Orissa Tenancy Act, was-self-contained and the only provision for deposit was Section 224, Sub-sections (2) and (3). Sub-section (2) is to the effect:

When an order for the sale of a tenure or holding in execution of such a decree has been made, the tenure or holding shall not be released from attachment unless, before it is knocked down to the auction-purchaser, the amount of the decree including the costs decreed, together with the costs incurred in order to the sale, is paid into Court, or the decree-holder makes an application for the release of the tenure or holding on the ground that the decree has been satisfied out of Court.

Sub-section (3) states:

The judgment-debtor, or any person having in the tenure or holding any interest voidale on the sale, may pay money into Court under this section.

Now the relevant provision in the CPC is Order 21, Rule 55. It states:

Where the amount decreed with costs and all charges and expenses resulting from the attachment of any property are paid into Court the attachment shall be deemed to be withdrawn.

It is patent that Order 21, Rule 55, is framed in wider language. It does not restrict the class of persons who may make the deposit, and to that extent is not consistent with Section 224, Orissa Tenancy Act. It is true that Section 224, Sub-section (1), does not expressly repeal Order 21, Rule 55. But this is immaterial. For, Section 224, sub Sections (2) and (3) being a special enactment repeal by implication of the general law contained in Order 21, Rule 55, Civil P.C. The principle is that a general Act is to be construed as not repealing a particular one, that is, one directed towards a special object (Lord Hatherly in Garnett v. Bradley (1878) 3 A.C. 950. (In my opinion Order 21, Rule 55 cannot apply.

The question was then mooted, whether respondent could make deposit u/s 224, Orissa Tenancy Act. The answer is clearly in the negative. In Mahadeo Lal Vs. Langat Singh and Others, . the Full Bench held that a purchaser without the landlord''s consent of a part of a non-transferable occupancy holding, which had been proclaimed for sale u/s 163, Bengal Tenancy Act, 1885, was not entitled to deposit the amount of the landlord''s decree and costs u/s 170(3) of the Act. Section 170(2) and (3), Bengal Tenancy Act, as it previously stood corresponds to Section 224(2) and (3), Orissa Tenancy Act. Both the statutes are pari materia and the construction adopted in the Full Bench case will be applicable to the present case. It follows that the respondent is not a person whose interest is "voidable on the sale" and so he is not entitled to make deposit u/s 224, Orissa Tenancy Act.

It was however pointed out for the respondent that Section 236, Orissa Tenancy Act, has been recently amended. Act IX [9] of 1946 amends Sub-section (1) of Section 236 as follows:

Notwithstanding anything in this Act, the incidents of tenancy of any tenants including the holder of a service tenure, in respect of the homestead in which such tenants ordinarily reside, shall be regulated by the provisions of this Act applicable to land held by an occupancy raiyat....

Act xxxII [32] of 1947 adds an explanation to Sub-section (1): "Explanation--A Chandandar is also a tenant within the meaning of this Sub-section." This Act enacts that this explanation shall have retrospective effect. But there is no provision (and probably the omission is accidental) that the amended Sub-section (1)(by Act ix [9] of 1946) should have retrospective effect. We cannot hence accept the argument for the respondent that Sub-section (1) has retrospective effect; that by virtue of Section 31B the Chandandar had a right to transfer the holding to the respondent; that the latter was consequently entitled to make the deposit.

It was also argued for the respondent that second appeal is incompetent. This contention is correct. But in Arjun Rautara Maharaja Krishna Chandra Gajapati A.I.R.1942 Pat. 1 a majority of the Full Bench held that the Collector was subordinate to the High Court when he acted u/s 204, Sub-sections (2), (3), (4) and (5), and that his order may be scrutinised by the High Court in exercise of its revisional powers. I therefore propose to treat the second appeal as an application for revision u/s 115, Civil P.C.

In my opinion the order of the Additional Collector must be set aside and the application must be allowed with costs.

Reuben J.

I agree.