Mandalghat Zemindary Syndicate Ltd. vs Katyani Dasi

P.N. Mookerjee, J.—The Appellant and the Respondent No. 1 were co-sharer landlords of a patni tenure which was held under them at an annual rent of Rs. 4,522. The Appellant was the landlord to the extent of a twelve annas and odd gandas share and the Respondent No. 1 had the remaining three annas and odd gandas share.

In the Appellant''s share the patni rent fell into arrears for the years 1348 to 1351 B.S. and, for recovery of the said arrear rents, the Appellant instituted Rent Suit No. 2 of 1945 in the Court of the Subordinate Judge, first Court, Howrah, framed in accordance with the provisions of Section 148A of the Bengal Tenancy Act, making the Respondent co-sharer landlord a party thereto. That suit was eventually decreed on February 5, 1946 and in execution of that decree the defaulting tenure was sold in Rent Execution Case No. 2 of 1948 on September 14, 1948 and it was duly purchased by the Appellant. This sale was duly confirmed on April 23, 1949 and the Appellant thus became the sole holder or patnidar of the said patni tenure while remaining its co-sharer landlord to the extent of its twelve annas and odd gandas share.

In the meantime, on April 5, 1949, the Respondent No. 1 had instituted Rent Suit No. 2 of 1949 for recovery of arrears of rent of the said patni tenure for the years 1352 to 1355 B.S. in her three annas and odd gandas share and, in that suit, she had impleaded several persons including Defendants Nos. 1 to 3 of that suit as tenants and also the Appellant, Defendant No. 8, as a co-sharer landlord, the latter''s auction-purchase, referred to above, not having been confirmed till then and the patni or the suit tenure not having thus passed to it at that time. This sale, however, was confirmed, as I have already said before, shortly thereafter, namely, on September 23, 1949, but no further steps appear to have been taken by the Respondent No. 1 in her above suit upon this confirmation and the plaint remained as it originally was. The Respondent''s rent suit was ultimately decreed on July 29, 1950, only against Defendants Nos. 1 to 3. No decree, however, was passed in the suit against the Appellant who was Defendant No. 8 therein, as already stated, although the decree against Defendants Nos. 1 to 3 was made in its presence. This decree was put into execution by the decree-holder (Respondent No. 1) in Rent Execution Case No. 8 of 1950 and, in that execution case, wherein the Appellant also was impleaded as a judgment-debtor, the defaulting patni was sought to be put up to sale by the Respondent No. 1. Thereupon, the Appellant filed an objection u/s 47 of the Code of Civil Procedure, objecting to the sale of the patni at the instance of the Respondent No. 1 in execution of her above decree, and the principal ground taken was that the patni tenure having already passed to the Appellant by reason of its auction-purchase, confirmed, as aforesaid, on September 23, 1949, that is, during the pendency of the Respondent''s rent suit, and the latter not having made it (the Appellant) a party to the same as the tenant or holder of the suit patni and, in any event, the said suit having eventually been decreed only against the other Defendants Nos. 1 to 3, as stated above, and not against the Appellant, the defaulting patni tenure, which had passed to the latter long before the Respondent No. 1 obtained the decree in her rent suit, could not be affected by such decree or proceeded against or sold in execution thereof. This objection succeeded before the learned Subordinate Judge but, on appeal, it was overruled by the learned Additional District Judge and against this appellate decision the present appeal has been preferred by the Appellant.

The facts, set out above, are not really in dispute. On those facts, the learned Subordinate Judge found that, as upon the confirmation of the sale, as stated above, on April 23, 1949, that is, during the pendency of the Respondent''s rent suit (Rent Suit No. 2 of 1949), the disputed patni had passed to the Appellant, the decree in the latter''s suit (Rent Suit No. 2 of 1945) being a rent decree and the resulting sale a rent sale, the Respondent''s decree obtained in her Rent Suit No. 2 of 1940, against only the other Defendants Nos. 1 to 3, whose interest in the tenancy had already ceased because of the Appellant''s above purchase, could not but be considered to have had the effect of a simple money decree and that, accordingly, the said decree could not be executed against the patni in the Appellant''s hands. The learned Subordinate Judge, accordingly, allowed the Appellant''s objection and exempted the disputed patni from sale in the Respondent''s execution case (Rent Execution Case No. 8 of 1950). On appeal, however, as I have already said, the learned Additional District Judge came to a different conclusion, holding inter alia that the Respondent''s decree "had the effect of a rent decree" in law and that, accordingly, it was enforceable against the defaulting patni in the Appellant''s hands. In reaching the above conclusion,-and, particularly, his above finding-the learned Additional District Judge appears to have been influenced by the fact that the Appellant was a Defendant, namely, Defendant No. 8, in the Respondent''s rent suit and, presumably, on this view, he held in favour of the Respondent. To support his conclusion the learned Additional District Judge also brought in Section 168A of the Bengal Tenancy Act,-which, as it appears from the record, was invoked by the decree-holder to support her appeal before him,-and, having held that the defaulting tenure had not ceased to exist by merger or otherwise upon the Appellant co-sharer landlord''s purchase thereof and was thus available for the Respondent No. 1 for realisation of her dues under her above "rent decree" and that the said Section 168A did not stand in her way, and having found that the Respondent No. 1 was entitled to bring the suit (Bent Suit No. 2 of 1949) for her share of the arrear rents of the disputed patni, the learned Judge proceeded to observe that "it can hardly be that she has right to bring a suit and "obtain a decree, but has no right to execute the decree". In the above view of the matter, the learned Additional District Judge allowed the Respondent''s appeal and dismissed the Appellant''s objection u/s 47 of the Code of Civil Procedure.

On the admitted facts, as stated above, it seems to me clear that the learned Subordinate Judge was right and his decision ought not to have been reversed. When the Respondent No. 1 brought her Rent Suit No. 2 of 1949 the Appellant''s purchase at its rent sale had not been confirmed. The Respondent No. 1, therefore, was perfectly right at that time in impleading it (the Appellant) in her suit only as a co-sharer landlord. When, however, the confirmation came, it was necessary for the Respondent No. 1 to pray for a decree against the Appellant also in its newly acquired status of the tenant as a result of the said confirmation and to amend the plaint accordingly. The argument of Dr. Sen Gupta, that, as the Appellant was already a party to the rent suit, though as a co-sharer landlord, that was sufficient to bind it by the result thereof even as a tenant, that is, even in its newly acquired tenancy right, particularly when in that rent suit the Appellant itself in its written statement had mentioned the fact of that confirmation and the Court also proceeded upon that footing, does not seem to be very convincing. Even assuming, however, that, in the above state of facts, the Appellant must be deemed to have become impleaded in the Respondent''s rent suit as a tenant Defendant, that would not be of any possible help to the Respondent No. 1 in the present case. Whatever might have been the findings of the Court on that occasion, the decree was actually passed only against the other Defendants Nos. 1 to 3 and there was no decree made against the present Appellant. There was no appeal but the Respondent No. 1 accepted this decision and it is this decree which is now sought to be executed. It is not possible to argue-and, indeed, that is not the Respondent''s case-that the Appellant was represented in the Respondent''s suit by the other Defendants Nos. 1 to 3 against whom alone the Respondent''s decree was obtained, or that the defaulting tenure, even after the confirmation of the Appellant''s auction-purchase, continued to be represented in the said suit by the said Defendants Nos. 1 to 3. It is difficult, therefore, to hold that the said decree, when it was not passed against the Appellant, would bind its interest in the disputed patni or the said patni in its hands and as, admittedly, at the date of the said decree, the patni had already passed in its entirety to the Appellant, against whom there was no decree made in the suit, the decree passed could not have the effect of a "rent-decree". The mere fact that the decree against the other Defendants Nos. 1 to 3 was made in the Appellant''s presence would not make it executable against the latter''s interest in the defaulting tenure or make it a "rent-decree".

When the decree in a rent suit is actually passed against other persons and no decree is made against a particular party, the mere fact that the latter was a Defendant in the said suit or that the decree was obtained in its presence would not make the decree executable against its interest in the tenancy on the footing of a "rent decree", particularly where there is no case of representation of the entire tenancy by the said other persons against whom the decree is actually passed. A "rent decree" cannot obviously be obtained without impleading all the tenants, or, those, at least, who represent or may be held to represent the entire tenancy. It does not, follow, however, that a decree obtained in a suit for rent, where all the tenants are impleaded or those who represent or may be held to represent the entire tenancy are impleaded, would necessarily be a "rent decree". If the decree is passed against all the tenants, it would certainly be a "rent-decree". If, again, the decree is passed against those of the tenants who represent or may be held to represent the entire tenancy, it would also be a "rent-decree". If, however, no decree is passed, even though wrongly, against the admitted tenant or tenants or some of them, while the decree is made,-though in their presence,-only against the rest who do not represent or cannot be held to represent the tenancy at all at the date of the decree-as it has happened in the present case-or do not represent or cannot be held to represent the entire tenancy at that date, the decree cannot have the effect of a "rent-decree". The learned Additional District Judge was, therefore, not right in holding that the Respondent''s decree in her Rent Suit No. 2 of 1949 "had the effect of a ''rent-decree''".

It is also difficult to see how, in the present case, Section 168A of the Bengal Tenancy Act can at all be relevant from the decree-holder''s point of view or to support the lower appellate Court''s decree. It no doubt appears that the decree-holder (who was the Appellant in the Court of appeal below) took a specific ground, namely, ground No. 4, in her memorandum of appeal that "in view of... Section 168A of B.T. Act" she was entitled to proceed against the tenure in execution of her decree. Possibly also, before the lower appellate Court, this ground was very strongly urged by the decree-holder (Appellant) in support of her appeal as is indicated by the learned Additional District Judge''s observation in his judgment that

the grounds urged in support of the appeal are that the view taken by the learned Subordinate Judge is erroneous inasmuch as there has been no merger of the tenure in view of the auction purchase of the tenure by the Mandalghat Zemindary Syndicate Ltd.

But I am entirely unable to appreciate the relevancy of the above argument of the decree-holder or the learned Additional District Judge''s long discussion in his judgment on the above section as an aid either to the decree-holder''s appeal before the lower appellate Court or the learned Judge''s final conclusion in the case. The section quoted has, in my opinion, no bearing on the case before us and the use, sought to be made of it by the decree-holder, namely, to upset the adverse finding of the learned Subordinate Judge that her decree was a mere "money decree" and to establish her right to proceed against the tenure in execution of the same was wholly unjustifiable and the learned Additional District Judge was evidently in error in relying upon the same. Nothing in that section can affect or alter, in any manner whatsoever, the legal position of the parties in the present case or the decision thereof. Nor is the result affected in any way by the fact that the Respondent''s Rent Suit No. 2 of 1949 was brought under or framed in accordance with the provisions of Section 148A of the Bengal Tenancy Act. Strictly speaking, that section has nothing to do with the representation of the tenancy; it is really concerned with the representation of the landlord''s interest in a suit for rent and its bearing upon the character of the decree is limited to that aspect of the matter; [vide in this connection Sub-section (6) of the section], and it is thus wholly irrelevant, so far as the question, now before us, is concerned.

It follows, therefore, that the finding of the learned Additional District Judge that the Respondent No. 1''s decree was a "rent "decree" and her present execution case was in law a "rent "execution case" was clearly erroneous and his attempt to support his final conclusion in the case by reference to Section 168A of the Bengal Tenancy Act was entirely misconceived and the discussion on that statutory provision in his judgment was irrelevant and unnecessary.

I, would, accordingly, reverse the decision of the learned Additional District Judge and restore that of the learned Subordinate Judge.

In the result, therefore, the Appellant''s objection u/s 47 of the Code succeeds and its Miscellaneous Case is allowed, as was done by the learned Subordinate Judge.

The appeal is allowed as above but there will be no order as to costs.

Sen, J.

I agree that the appeal should be allowed. I should like to add, however, that it does not appear to me that the reference made by the lower appellate Court to the provisions of Section 168A of the Bengal Tenancy Act was misconceived. The learned Judge was clearly meeting the argument that Katyayani Dasi, Respondent No. 1, was not entitled to bring a rent suit at all for her dues up to a date prior to the date of confirmation of the sale in favour of the Mandalghat Zemindary Syndicate, i.e., the Appellant, and that she should have claimed her dues from the purchaser at the earlier execution sale, i.e., the Appellant, under the provisions of Section 168A(1)(b). The learned Judge quite properly refuted this argument and held that the Respondent was entitled to bring a rent suit as she was not a decree-holder under the previous decree. But the learned Judge omitted to consider the further point whether the judgment-debtors in the decree obtained by Respondent No. 1 represented the tenancy, and so he came to a conclusion which has to be reversed.