Manohardas Mohanta vs Sripati Dutta

Binayak Nath Banerjee, J.—This appeal is directed against an appellate order, reversing an order made by a learned Munsif and allowing an objection u/s 47 of the Code of Civil Procedure.

Facts, in so far as they are not disputed in this appeal, are hereinafter stated. One Mrityunjoy Ghosh was a Darputnidar under the Appellant Monohardas. For recovery of arrears of rent, Monohar instituted a suit against Mrityunjoy, being rent suit No. 895 of 1953. The suit was decreed on July 21, 1953. Thereafter, by purchase in a money execution sale, Sripati, the Respondent, acquired the right title and interest of Mrityunjoy in the Darptani temire.

The Darputni vested in the State Government, under tie provisions of the West Bengal Estates Acquisition Act, 1953 (hereinafter referred to as the Act), with effect from April 15, 1955.

The Appellant decree-holder put the rent decree into execution, and sought to attach the compensation to which the Respondent became entitled under the Act. The present Respondent filed an objection to the execution of the decree, u/s 47 of the Code of Civil Procedure, inter alia, on the following grounds:

(a) He was no party to the decree'' and therefore not bound thereby.

(b) After the vesting of the Darputni in the State, the decree could not be executed as a rent decree.

(c) The compensation money sought to be attached was not an attachable property.

We are concerned in this appeal with the last objection. The other objections were not pressed before us. The learned Munsif dismissed the objection with the following observations:

Under the Estates Acquisition Act the intermediary interests vest in the State free from all incumbrances. But these incumbrances do not freeze by such vesting so far as the parties are concerned. But for this vesting * * the decree could have been executed. So if the decree could have been executed against the applicant by the decree-holder before the vesting, this could be done so after, the vesting. The charge will not follow the tenure which has vested but it will follow the money to which it has been so converted into after the vesting.

The judgment-debtor Respondent appealed to the court of appeal below. The lower appellate court reversed the order passed by the learned Munsif and allowed the objection, inter alia, on the following ground:

The compensation to be paid for the Darputni by the State of West Bengal is to be finally published in a Compensation Assessment Roll u/s 21 of the West Bengal Estates Acquisition Act of 1933. The compensation Assessment Roll has not yet been prepared and finally published. In my view there cannot be attachment of a them, which does not exist, nor can there be any attachment of anticipation. The opposite party''s petition for attachment of the compensation to be awarded for the Darputni, therefore, also appears to be not maintainable in law.

The propriety of the aforesaid order is being disputed before us in this appeal.

u/s 8 of the West Bengal Estates Acquisition Act, 1953, arrears of rent due to an intermediary and decrees for such arrears, whether obtained before or after the date of vesting and the execution of which is net barred by limitation, shall continue ''to be recoverable by such intermediary. The section as it originally stood contained a further provision that such arrears and decrees "shall without prejudice to any other mode of "recovery be recoverable by attachment of any money that may "be payable as compensation." This provision was omitted by West Bengal Act XXVIII of 1954. In its place the following provision was added as the first proviso to the section:

Provided that if such person be himself an intermediary the recovery of such arrears from the compensation shall be subject to the provisions of Section 26 of the Act,

Explaining the scope of the aforesaid proviso P.N. Mookerjee and Sarkar JJ. observed in the case of Ahidhar Ghose Vs. Sm. Nisu Bala Devi, :

There is nothing in this section (meaning Section 8) to warrant, or, even to suggest the view that arrears of rent from an intermediary are to be recovered only from the compensation money, payable to the intermediary under the Act. The proviso to the section does, on the other hand, make it abundantly clear that the arrears may be recovered form the compensation money, that being one of the modes of such recovery, subject to the provision of Section 26 of the Act. In other words, the proviso only prescribes that, where the above mode, one amongst many, of recovery of arrear of rent is adopted or sought to be availed of, namely, recovery from the compensation money, it must be subject to the provisions of Section 26. The proviso is intended only to apply the restrictions u/s 26 when the arrears of rent are sought to be recovered from the compensation. There was necessity for the proviso as, otherwise, the whole of the compensation money might have gone to satisfy dues on account of arrears of rent which was not the intention of the statute and Section 26 might have been frustrated in an number of cases and, in any event, unnecessary conflicts and complications would have arisen. Our attention was drawn to the amendment of Section 8, by which the words "and shall without prejudice to any other "mode of recovery be recoverable by attachment of any money that may be payable as compensation to such person under the Act" were omitted, and it was argued that the omission, in the light of the proviso added, was intended to restrict the right of recovery only to the compensation money. We do not think the argument can be accepted. The necessity and purpose of the proviso has already been explained and, as to the omission, it is enough to say that the words omitted were redundant or unnecessary and that with or without them, the section means the same tiling, namely, that the arrears would be recoverable in any manner (including attachment of the compensation money) recognised by law.

Section 26 above referred to is to the following effect:

Section 26: (1) Save as otherwise provided in the proviso to Sub-section (1) of Section 7, no portion of the compensation payable to any intermediary in terms of any Compensation Assessment Roll finally published u/s 21, in excess of fifty per centum thereof shall-

(a) be liable to be deducted under an order of a Collector made u/s 7, or

(b) be liable to attachment at any one time in execution of decrees including decrees for arrears of rent;

(2) where there are several orders of attachment and the aggregate of the sums to be attached under such orders exceeds the limit referred to in Sub-section (1), the orders shall be enforceable to the extent of such limit and the priority amongst them shall be decided, as far as practicable, in accordance with the principles laid down in Section 73 of the Code of Civil Procedure, 1908:

Provided that any sum which is required to be deducted under the order of Collector u/s 7 shall have priority before any order of attachment.

(3) Except�

(a) in a case covered by the proviso to Sub-section (1) of Section 7, or

(b) when the entire amount of compensation is payable in cash, all sums to-be deducted u/s 7 or recoverable under an order of attachment under Sub-section (1) shall be deducted from the amount of compensation payable in non-negotiable bonds under the provisions of Clause (b) of Sub-section (2) of Section 23 [and no such sum shall be deducted from the amounts payable under Sub-section (1) of Sub-section (2) of Section 12].

Liberty being thus reserved to the decree-holder to proceed against the compensation money, by attachment, the question arises for our consideration, in this case, at what stage such attachment can be effected. The court below was of opinion that no attachment could be made until the compensation to be paid for the Darputni tenure by the State of West Bengal was finally published in a Compensation Assessment Roll prepared u/s 21 of the West Bengal Estates Acquisition Act. The reason which weighed with the court below was that there could not be attachment of a thing which did not exist, nor could there be any attachment of anticipation.

In our opinion the reason given by the court below is erroneous. Assessment of compensation and publication of such assessment in a document known as the Compensation Assessment Roll are matters for domestic calculation on the part of the State Government. Right to receive a sum of money by way of compensation accrues to an intermediary immediately with the vesting of his estate. The sum of money so receivable, though not ascertained, is ascertainable. The sum is, however, not payable until the State Government ascertains it. (But although got payable, until ascertained, by the State Government, the compensation money is the property of the intermediary from the date of the vesting. That being so there is no reason why such a property cannot be attached by the decree-holder, subject to the provisions of Section 26 of the West Bengal Estates Acquisition Act.

In the view that we take we set aside the order made by the court below, allow the appeal and restore the order made by the learned Munsif. There will be no order as to cost in this appeal.

Amakesh Ray, J.

I agree.