P.C. Lal Choudhury vs Bilto Mahto

Dhavle, J.—This is an appeal by the decree-holder from an order passed in execution proceedings relating to a rent decree obtained by him on 19th December 1938. The holding of the respondent was sold in the execution proceedings on 8th August 1939, and purchased by the decree-holder himself on 23rd August 1939. He filed a stamp paper for his sale certificate, and the executing Court adjourned the proceeding to 11th September for confirmation of the sale. Three days before this, on 8th September, the judgment-debtor filed an application u/s 15(a), Bihar Restoration of Bakasht Lands and Reduction of Arrears of Bent Act, 9 of 1938, on the ground that the rent "of the holding in suit had been reduced from Rs. 19-2.0 to Rs. 9-6-0 a year with effect from 1343 Fs. (the second of the four years in suit). The order reducing the rent had been passed on 24th February 1939, and the prayer of the judgment-debtor was that the decree which was being executed be amended in the light of the reduction allowed by the Rent Reduction Officer. This application was allowed by the Munsif, and the sale, held on 8th August 1939, set aside. An appeal was preferred to and heard by the District Judge, before whom it was unsuccessfully contended that the Court had no power to refuse to confirm the sale which had already been held, and that application u/s 15(a) of the Act of 1938 cannot be entertained after the execution sale. What Section 15 provides is (confining oneself to portions which are now material) that where the rent of an occupancy holding has been settled or reduced... under Clause (d) of Sub Section (1) of Section 112 A, Bihar Ten. Act... a landlord shall not, in any suit or proceeding instituted before or after the date on which this section comes into force, be entitled to recover from the raiyat of such holding any arrears of the rent of such holding in respect of the years covered by such suit or proceeding, at a rate in excess of the rent so... reduced,

This is the first section in chap. 3 of the Act, the last section in the Chapter being Section 20, which provides that "in this chapter ''proceeding'' includes an execution proceeding". Reading the two sections together, it would seem that where, as in this case the rent of an occupancy holding has been reduced under Clause (d) of Section 112A(1), Bihar Tenancy Act; the landlord shall not even in an execution proceeding be entitled to recover from the raiyat any arrears of rent in excess of the rate allowed by the Rent Reduction Officer.

The learned advocate for the appellant has argued that Sections 15 to 20 do not contemplate applications after a sale has been held in execution, and he has rested the argument on two grounds: (a) the section does not say what is to happen if a sale has taken place, and (2) no limitation has been provided for such applications. It does not seem to me that these considerations are sufficient to entitle one to hold that the sections do not contemplate applications after the execution sale. Execution proceedings do not come to an end with such sales, and it is a part of the execution proceeding to confirm the sale in due course. That Section 15(a) does not say what is to happen if a sale has taken place seems to me no reason for confining its operation to stages of execution proceedings previous to the sale, for if the landlord is not to be entitled to recover anything in excess of the reduced rents, whether in a suit or in execution proceeding, the decretal amount will have to be scaled down if execution proceedings be pending, and execution for the larger amount already decreed will necessarily fail.

The relation of execution proceedings to orders passed under Chap. 3 of the Act of 1938 came under consideration in M.A. No. 182 of 1910 decided on 25th February 1941, Sreekant Lal Vs. Ajodhya Singh and Others, , in which my Lord the Chief Justice (sitting with Varma J.) overruled the contention that where rent is reduced on an application u/s 16, execution proceedings could only be stayed or stopped if they had already been stayed u/s 17. His Lordship''s view was that whether a previous application had or had not been made to stay proceedings pending the result of rent reduction proceedings further execution proceedings cannot proceed once the Rent Reduction Officer has made an order reducing rent and granting instalments.

On the terms of Section 15, read with Section 20, it seems to me impossible to refuse relief to the judgment-debtor after he has obtained a reduction of rent from the proper authorities merely on the ground that the execution sale has already taken place--provided of course that the execution proceeding is still pending. The contention of the learn, ed advocate that no period of limitation has been provided for applications u/s 15(a) and that, therefore, Sections 15 and 20 will not apply after sale, has little force, as civil and criminal revisions, u/s 115, Civil P.C., and Section 489, Criminal P.C., are also not governed by any statutory provisions regarding limitation; and the mere fact that there is a limitation of 30 days from the sale for applications u/s 174, Bihar Tenancy Act, and a similar period of limitation for applications under Order 21, Rule 90, Civil P.C., has, in my opinion, little bearing on the applicability or otherwise of Section 15(a) to what may be called a post-sale stage of execution. The intention of the law seems to be that after a competent order reducing the rent neither the Court dealing with a suit nor the executing Court is to let the landlord recover rent at a higher rate than has been fixed by the rent reduction officer; and the obligation laid on the executing Court to see that this provision is given effect to, cannot be said from any point of view, to come to an end as soon as the sale is held.

The learned advocate for the appellant attempted at one time to argue that the executing Court may have power to act in accordance with Section 15(a) after the sale but not after the 80 days on the expiry of which confirmation of the sale follows as a matter of course unless a proper application has been made by some interested party. This, if accepted, would be of help to the appellant in the present case, because the judgment-debtor''s application was made after the expiry of 30 days from the date of sale.

It is, however, impossible to accept the contention, because the executing Court clearly did not become functus officio merely on the expiry of the 30 days from the sale--that stage is only reached when the sale is confirmed and the execution case dismissed as on full satisfaction. The power of the Court to set aside a sale which has already been held for the realization of a larger amount than is permissible u/s 15(a) has been impugned as without any foundation, and it has been suggested that the Court can only set an execution sale aside under specific authority such as is given either by Section 174, Bihar Tenancy Act, or by Order 21, Rule 90, Civil P.C. I had occasion to examine this contention (though not in connexion with Bihar Act, 9 of 1938) in M.A. No. 135 of 19392 decided by Meredith J., and myself on 23rd December last, and I came to the conclusion that the power of the Court to set sales aside cannot be confined to specific provisions of that kind. If our Act says that the landlord shall not in an execution proceeding be entitled to recover from the raiyat arrears of rent at a higher rate than that allowed by the rent reduction officer, it seems to me that the executing Court is bound to limit the execution to the amount permissible under the section and to set aside and disregard any pending execution for a larger amount.

In my opinion the lower Courts correctly held that the application of the judgment-debtor u/s 15(a) must be given effect to.

The appeal fails and must be dismissed with costs. Hearing fee, one gold mohur.