Manindra Narayan Dhar vs Sm. Jyotsnalata Debi

P.N. Mookerjee, J.—This appeal raises a short but interesting question u/s 168A of the Bengal Tenancy Act.

The appeal is by the Plaintiff decree-holder and it arises out of an execution proceeding, following a rent suit, in which a decree was passed for arrears of rent, cesses, etc. The decree was made on September 23, 1953. It was, in substance, in favour of the two decree-holders,-one, the original Plaintiff, decree-holder, and the other, the co-Plaintiff, decree-holder,--for Rs. 6,239-6-6 pies and Rs. 236-15 as., respectively. The decree was put into execution and it was sought to be executed,--and actually executed,-against the defaulting tenure (darpatni), which was sold on May 15, 1954. The sale price was Rs. 7,001 and the purchase was made by a stranger auction-purchaser, Sm. Radharani Dasi. At the time of the sale, the outstanding decretal dues amounted to Rs. 4,698-10 as., due to certain payments having been made by the tenants judgment-debtors, and duly deducted from the original decretal dues,-between the date of the decree and the aforesaid sale. There were thus surplus sale-proceeds to the tune of Rs. 2,302-6 as., after satisfaction of the above decretal dues.

On January 27, 1955, the decree-holders applied to the court below stating that the above surplus sale-proceeds, along with a further payment of Rs. 4,266-5-4 pies, made by the stranger auction-purchaser to the said decree-holders, amounting to Rs. 6,568-11-4 pies, had satisfied their claim for subsequent rent, as contemplated u/s 168A(1)(b) and 169(7)(c) of the Bengal Tenancy Act and, accordingly, the sale may be confirmed and the execution case may be dismissed on full satisfaction. On this application, which was not opposed by any of the parties, the court directed confirmation of the sale and dismissal of the execution case on full satisfaction, with a rider that the surplus sale-proceeds (Rs. 2,302-6 as.) were to be transferred to the credit of the judgment-debtors,-this obviously being an accidental slip or an inadvertent mistake in the circumstances of this case. Any way, this mistake remained on the record.

Thereafter, on the very same day, namely, January 27, 1955, the. decree-holders applied for withdrawing the above surplus proceeds, stated by them, in their earlier petition for recording confirmation of the sale and for dismissing the execution case on full satisfaction, as having been appropriated by them (the decree-holders) towards their claim for subsequent rent for the period between the date of institution of the suit and the said confirmation of the sale. This was obviously done under the impression that the surplus sale proceeds, in terms, or, in the light, of the decree-holders'' aforesaid petition, had been ordered to be transferred to their credit and, presumably, overlooking the mistake, appearing in the court''s order, that the same were to be transferred to the credit of the judgment-debtors. This application of the decree-holders, however, was opposed,-and strenuously opposed,-on behalf of the tenants judgment-debtors who contended that, in the circumstances of this case, liability for any portion of the subsequent rent, or for the same in its entirety, would be of the stranger auction-purchaser and the tenants judgment-debtors would not be liable for it at all and, accordingly, the surplus sale proceeds, referred to above namely, Rs. 2,302-6 as., would be payable to and receivable by the said judgment-debtors.

The matter then came up before the learned Subordinate Judge for consideration and that learned Judge, by his order No. 49, dated May 22, 1956, held in favour of the tenants judgment-debtors and refused the decree-holders'' application for payment of the surplus sale proceeds to them. The learned Subordinate Judge, in his said order, mentioned several cases of this Court, namely, Phanibhusan Mukherjee, Receiver v. Rai Bahadur Purna Chandra Bagchi (1943) 48 C.W.N. 210, Rai Jogendra Chandra Ghose Bahadur v. Bhawani Charan Law (1945) 49 C.W.N. 552, Naresh Chandra Bose Vs. Bhupendra Narayan Sinha, , and Labpur Zemindaries Ltd. v. Narayan Chandra Raimahashaya (1954) 69 C.W.N. 56, noticing, at the same time, that none of the said decisions was a direct decision on the point before him, although there were observations, in some of them, which might indicate one or other particular approach. The learned Subordinate Judge, eventually, as we have said above, dismissed the decree-holders'' application, giving effect to the judgment-debtors'' objections thereto and directing that the balance of the said subsequent arrears of rent would be payable by and recoverable from the auction-purchaser and that the surplus sale proceeds, as mentioned hereinbefore, would go to the judgment-debtors. From this order, the present appeal has been taken by the Plaintiff decree-holder.

In support of the appeal, Mr. Das Gupta relied on the statute itself, namely, Section 168A(1)(b) of the Bengal Tenancy Act and he contended that, under the said section, the entire sale proceeds must first liquidate, if possible, the claim of the decree-holder on account of the decretal dues, the costs of execution and subsequent arrears, falling due between the date of the suit and the confirmation of the sale, and, if there was a deficiency, then and then only the auction-purchaser would be liable for the deficit or deficient portion of the said subsequent rent (arrears) and, in case of a surplus only, after meeting the aforesaid dues, the judgment-debtors would be entitled to receive the same. Mr. Das Gupta relied on the wording of the section itself and, according to him. that was the only possible construction, or, at any rate, the true construction of the said statutory provision. Mr. Das Gupta conceded that there was no actual or direct decision on the point, but he contended that both the letter and the spirit of the statute supported his aforesaid argument.

The appeal was opposed on behalf of the Defendants judgment-debtors by Mr. Chatterjee, who maintained or tried to maintain that the view, taken by the learned Subordinate Judge, was correct, and he argued the extreme proposition that, in all cases, the auction-purchaser would be liable for the subsequent rent, as mentioned in Section 168A(1)(b). Mr. Chatterjee wanted us to read the section as referring to the deficiency between the purchase price and the decretal dues and the cost of execution and, according to his submission, in ascertaining this deficiency, the subsequent rents would not be relevant. Liability for the subsequent rents, according to Mr. Chatterjee, was contemplated and designed or intended by the statute to be laid on the auction-purchaser. Mr. Chatterjee further contended that, in any event, where the judgment-debtor, by making certain payments, had reduced the decretal dues, he was, in equity, entitled, from out of the sale proceeds, at least, to the amount which had gone to effect such reduction. Lastly, Mr. Chatterjee contended that, in this particular case, on the decree-holders'' application for directing confirmation of sale and dismissal of the execution case on full satisfaction, presumably on the fooling that their entire dues, as contemplated by the statute, had already been satisfied, the court having directed the sale proceeds to be transferred to the credit of the judgment-debtors, there was an end of the matter and the decree-holders could no longer lay any claim to the same.

We shall examine the rival contentions of the two parties in due course, but, before we do so, it is necessary to draw attention to the next section in the statute, namely, Section 169 (along with Section 168A(1)(b)) which throws light on the construction of the aforesaid Section 168(1)(b), if any light be needed for the purpose and if the plain words of the section (Section 168(1)(b)) be not sufficient and any ambiguity be felt in the matter of its construction.

Now, Section 168A(1)(b) of the Bengal Tenancy Act is in these terms:

the purchaser at a sale referred to in Clause (a) (that is, a sale for arrears of rent due in respect of a tenancy or holding, whether having the effect of a rent sale or of a money sale), shall be liable to pay to the decree- holder�..the deficiency, if any, between the purchase price and the amount due under the decree together with the costs incurred in bringing the tenure or holding to sale and any rent which may have become payable to the decree-holder between the date of the institution of the suit and the date of the confirmation of the sale.

To our mind, the section, on a plain construction, makes the purchaser liable for payment only in case of a definiency between the purchase price on the one hand and of the other items, mentioned above, on the other. We do not think that any other interpretation or construction of the section is possible, or, at any rate, reasonable. It is to be remembered in this connection that this section (168A) came on the statute book for the purpose of giving some relief to the tenant but the extent of the relief also must be taken to be comprised in the section itself and the intention of the legislature was clear that, for arrears of rent of a tenure or holding, the tenant should not ordinarily have liability beyond the said tenure or holding. In other words, the clear intention of the statute was to limit, save in the exceptional cases, mentioned in the section itself, the liability of the tenant for such arrears to the sale price of the particular tenure or holding and to save his other properties,-and to save him personally,- from further proceedings in respect thereof except under the special circumstances, specified in the section itself, as aforesaid. If, in that context, we read, along with Section 168(1)(b), the succeeding Section 169(1), which provides for the disposal of the sale proceeds in case of sale of a tenure or holding, the matter becomes perfectly clear and clear beyond all possible doubt or dispute. Section 169(1), clauses. (a), (b), (c) and (d), provide how the sale proceeds are to be distributed. The four clauses. (a), (b), (c) and (d) proceed seriatim in the matter of such disposal. Clause (a) says that there shall be first paid to the decree-holder the costs, incurred by him in bringing the tenure or holding to sale. This is the second item in Section 168A(1)(b), which is to be deducted from the sale proceeds under that section. Clause (b) of Section 169(1) provides that there shall, in the next place, be paid to the decree-holder the amount, due to him under the decree, ill execution whereof the sale was held. This corresponds to the first item in the corresponding part of Section 168A(1)(b). Clause (c) of Section 169(1) provides that, "If there remains a balance after these (the above) sums (as mentioned in clauses. (a) and (b) of the section) have been paid, there shall be paid to the decree-holder therefrom the costs of the application under this section and any rent which may have fallen due to him in respect of the tenure or holding between the institution of the suit and the date of the confirmation of the sale". This last part corresponds to the last part of Section 168A(1)(b) which provides for the subsequent rent or the subsequent arrears, as they are familiarly known or popularly called. Clause (d) of Section 169(1) then provides that the balance, if any, remaining after the payment of rent, mentioned in clause. (c), shall, upon the expiry of two months from the confirmation of the sale, be paid to the judgment-debtor upon his application unless the court, for reasons to be recorded in writing, otherwise directs. It is clear, then from a reading of Section 169 of the statute that the three items (a), (b) and (c) of Sub-section (2) thereof constitute primary liabilities of the judgment debtor and it is only after satisfying those liabilities from the sale proceeds that the judgment-debtor would be entitled to the balance or surplus, if any be still left, out of the said sale proceeds. In the context of the legislative intention, to which we have referred, and having regard, in particular, to the succeeding Section 169, as quoted and explained hereinbefore, there cannot be the least possible doubt that the deficiency that was meant or contemplated by Section 168A(2)(b) was the deficiency between the purchase price and the three items, mentioned in the succeeding part of the said clause. As we have said above, this is plain from a reading of the said clause itself, but, if there be any ambiguity, or if any ambiguity be felt, that ambiguity is at once removed or resolved by reference to the above legislative intent in the light of the succeeding section, Section 169, of the statute. On principle, therefore, and, also, as a matter of construction, Mr. Das Gupta''s contention ought to prevail in preference to Mr. Chatterjee''s submission to the contrary.

On authorities too, if expression of opinion by the learned Judges in different decisions of this Court suffices for the purpose, the position would be the same. It is necessary in this connection to refer only to two of the cases, cited by the learned Subordinate Judge himself, namely, Phani Bhusan v. Rai Bahadur Purna Chandra and Naresh Chandra v. Raja Bhupendra (supra). In Phani Bhusan v. Rai Bahadur Purna Chandra Mukherjea, J., as he then was, made the following very pertinent observations at p. 212 of the report:

It may have been in the mind of the legislature that, when a tenure or holding is sold in execution of a rent decree, it should at least fetch a price that will cover the decretal dues and the subsequent rents, due to the landlord, prior to the date of the confirmation of the sale. If the sale proceeds are insufficient to meet these demands, it is for the purchaser to make good this deficiency.

and Pal, J., as he then was, delivering his separate judgment, expressly mentioned, at pp. 214-5, the several sums or items, which were to be deducted u/s 168A(1)(b) for ascertaining the deficiency, referred to in the earlier part of the said clause, and these several sums or items included, according to his Lordship, the three items, mentioned in Clause (a), (b) and (r) of Section 169(1) of the statute. In the later case, reported in Naresh Chandra v. Raja Bhupendra (supra), which also has been referred to by the learned Subordinate Judge, there are, at p. 248 of the report, certain observations which support the very same proposition and there also an indication is to be found that all the above three items are to be deducted from the purchase price for the purpose of finding out the deficiency, if any, as contemplated in the said clause. The other two cases, Jogendra Chandra v. Bhawani Charan and Labpur Zemindaries v. Narayan Chandra (supra), cited by the learned Subordinate Judge, have not the remotest bearing on the point, now before us, and the general observations, there made, as to auction-purchaser''s liability for the subsequent rents or arrears were obviously with reference to cases of deficiency, as mentioned in the section, but the question as to the meaning of this deficiency did not arise in any of the said two cases and neither of them made any observation, either remote or proximate, upon the said point. I may point out further that both Jogendra Chandra v. Bhawani Charan and Labpur Zemindaries v. Narayan Chandra (supra) were or would have been, as it appears from the Reports, cases of deficiency only if the subsequent arrears were taken into account.

On principle, then, as also on authority, the view, given or taken above by us, as to the construction of the relevant Section 168A(1)(b), is well supported. As we remarked earlier, the matter, so it seems to us, was absolutely free from doubt even as a matter of plain construction of the said section itself. The first objection of Mr. Chatterjee, relating to the construction of the section, must accordingly, fail and the contention of Mr. Das Gupta on the point should be accepted.

This would have been sufficient for our present purpose to decree the present appeal but, as the two other questions have also been raised by Mr. Chatterjee to support the order of the learned Subordinate Judge, it is our bounden duty to consider the same and over-rule them before we actually allow this appeal. Of the said two contentions, the first one is at once answered by or by reference to our observations, already made, as to the true meaning and scope of the term ''deficiency'' as used in the above Section 168A(1)(b) and as to the primary liability of the judgment-debtor (tenant) for the several items, mentioned in the aforesaid Clause (b) of Section 168A(1) and in the succeeding Section 169(1), clause. (a), (b) and (c). In the light and context of these observations it is perfectly clear that, if any payment has been made by the judgment-debtor towards the decree between the date of the decree and the date of sale, that payment cannot give him any advantage or benefit in the shape of claiming any portion of the surplus sale proceeds to the prejudice of either the decree-holder or the auction-purchaser. This is also, clearly, in consonance with equity and the underlying principle, as explained hereinbefore, on which the section (Section 168A) is based. The payments were made towards the decreetal dues, which were arrears of rent, for which the tenants-judgment-debtors were primarily liable. By making those payments, therefore, they were discharging their own (primary) liability. By so doing, they cannot certainly claim any benefit or advantage out of or in respect of the surplus sale proceeds or out of or in respect of the defaulting tenure, which of course, ordinarily speaking, sets the limit to their liability for Tent. It is one thing to say that the judgment-debtor''s liability would be limited to the defaulting tenure or holding, it is another tiling to say that a part of that liability would be discharged by some other person while the judgment-debtor would get or retain a portion of the said defauling tenure or holding in the shape of surplus sale proceeds. That was never the intention of the statute and, on the plain words of the section, as already construed by us, the intention appears to be quite or just the contrary. In this view, we overrule also the second objection, raised by Mr. Chatterjee.

Coming now to the last one, or the last contention of Mr. Chatterjee it will at once be clear, as we have already sufficiently said above, that the mention of the judgment-debtors as the persons, to whose credit the surplus sale proceeds were to be transferred, in the order of the executing court, dated January 27, 1955, was purely an accidental slip and an obvious and inadvertent mistake, as the order was being passed upon the decree-holders'' application, which expressly proceeded upon an appropriation of the said surplus sale proceeds towards the decretal dues and which was unopposed before the court. In these circumstances, the judgment-debtors are not entitled to take any advantage of the said mistake in the court''s order and, as to his other or connected contention under this head that the decree-holders'' application for confirmation of the sale and dismissal of the execution case on full satisfaction must have been on the footing that all their dues under the statute had been satisfied, even without the said surplus sale proceeds, it is enough to point to the said application itself which, as already stated, proceeded expressly upon the footing that the said surplus sale proceeds had been appropriated and adjusted towards the outstanding claim, of the decree-holders for subsequent rent or arrears in terms of Section 168A(1)(b), read with Section 169(1)(c), of the Bengal Act. In this view, we over-rule also the third objection, raised by Mr. Chatterjee.

In the result, then, this appeal succeeds and it is decreed. The order of the learned Subordinate Judge is set aside and the decree-holders'' application, dated January 27, 1955, for payment to them of the surplus sale proceeds, amounting to Rs. 2,302-6 as., is allowed. In the circumstances of this case, we would direct the parties to bear their own costs in this appeal and also in the connected miscellaneous case.

N.K. Sen, J.

I agree.