Pratap Udai Nath Sahi Deo vs Baraik Mohan Sahu and Others

Agarwala, C.J.—The following questions have been referred to this Bench by a Division Bench:

Whether, in the circumstances of the case, the right, title and interest of the judgment-debtors in the tenure could be sold u/s 210(2) of the Chota Nagpur Tenancy Act, and (2) whether Inderjit Nath v. Pratap Udai Nath AIR 1942 Pat. 84 was correctly decided.

As this reference is in a Second Appeal, the whole appeal is before us. The facts are that the landlord brought a suit for recovery of rent of a resumable tenure known as Fulsuri Lot, but failed to implead in the suit one Mt. Dukha, who owned an interest in the tenure. Having obtained a decree, the plaintiff sought execution of it. One of the judgment-debtors, Bandhu Sahi, died before the execution sale was held. In the suit and execution proceedings he was impleaded not only because he owned a share in the tenure, but also as the guardian of his minor brother. A previous attempt to execute the decree by sale of the tenure had been defeated on account of an objection that the tenure was not liable to be sold as all the persons interested in it had not been impleaded in the suit.

In the present execution the decree-holder applied for the sale of right, title and interest of the judgment-debtors, stating that his application was made u/s 210(2) of the Chota Nagpur Tenancy Act, the permission of the Deputy Commissioner having been obtained. An objection was raised that Section 210(2) did not apply to the sale of the right, title and interest o� the judgment-debtor in a tenure where the decree, in respect of which it was sought to sell the right, title and interest, was for the rent of the tenure. This objection was upheld by the executing Court, but was overruled in appeal by the Judicial Commissioner on 22nd June 1938. Shortly before this, on 8th June, an amendment of Section 210 came into operation. The judgment-debtors again objected to the sale of the right, title and interest of the judgment debtors, basing their objection on Sub-section (2) as amended. This objection was overruled both by the executing and the appellate Courts, with the result that the right, title and interest of the judgment-debtors was put up for sale and was purchased by defendant 4, that is to say, the right, title and interest of the judgment-debtors who were parties to the execution proceedings was put up for sale and purchased by defendant 4. The plaintiff, who is one of the persons interested in the tenure, and who was a party to the suit and the execution proceedings, instituted the suit put of which this appeal has arisen for a declaration that his right, title and interest in the tenure was not affected by the sale and for recovery of possession. Both the Courts below have decreed the suit holding that the right, title and interest of the judgment-debtors could not be sold u/s 210(2) of the Act.

On behalf of the appellant it is contended that there is no provision in the Act for sale of the right, title and interest of a judgment-debtor in execution of a decree against some of the owners of the tenure, when the decree has been obtained for the rent of that tenure, owing to a lacuna in the Act, and that the Deputy Commissioner has no jurisdiction to execute the decree which he himself made. The latter part of this contention is clearly unsustainable in view of the provisions of Section 182 which declares that a decree or order passed by a Deputy Commissioner under this Act may be executed either by his own Court, or by any other prescribed Court.

The more difficult question, however, is how such a decree is to be executed. Section 184 provides that process of execution may be issued either against the person or the property of the judgment-debtor, but shall not be issued simultaneously against both person and property. The procedure for proceeding against the person of the judgment-debtor, or for the sale of his movable property, is set out with particularity in the following sections. In Section 198 provision is made for execution of a decree for money against the immovable property of the judgment-debtor when the decree is not in respect of money due or recoverable as an arrear of rent.

When a decree has been passed by the Deputy Commissioner under the Act for an arrear of rent due in respect of a tenure or holding, the decree-holder is authorised by Section 208 to apply for the sale of the tenure or holding, and the tenure or holding may then be brought to sale in accordance with provisions relating to the sale of under-tenures contained in the Bengal Rent Recovery (Under Tenures) Act, 1865. All the provisions of that Act are declared to apply to such a sale except Sections 12 to 15. If the proceeds of the sale are insufficient to satisfy the decree, Section 2l0(1) authorises the issue of execution process against any other property, movable or immovable, belonging to the judgment-debtor. Sale of the tenure u/s 208, however, is not the only method by which the holder of a decree for the rent of the tenure may execute the decree, for Sub-section (2) of Section 210 authorises the decree, holder, subject to the permission of the Deputy Commissioner to proceed against any other property, movable or immovable, of the judgment-debtor without first applying for sale of the tenure in respect of the rent of which the decree has been made. As has been already stated, in the present instance, when applying for execution of the decree, one decree-holder stated that his application was one u/s 210(2), and it is contended by the defendant-appellant that a sale held under the provisions of this Sub-section, in the circumstances of the present case, was a valid sale.

The contention that Section 210(2) applies to this case must be overruled. The words "any other property, movable or immovable," occurring in both Sub-section (1) and Sub-section (2) of Section 210 must mean the "same thing in both Sub-sections. It is obvious that these words in Sub-section (1) refer to property entirely independent of the tenure or holding in respect to which the decree has been made, for after the tenure or holding has been sold u/s 208, there is no other interest in it belonging to the judgment-debtor and, therefore, the words cannot be held to refer to some lesser interest belonging to the judgment-debtor, in the tenure or holding. The same words in Sub-section (2) cannot be differently construed so as to refer to such lesser interest belonging to the judgment-debtor in the tenure or holding. There is no section of the Act which specifically provides for the sale of the right, title and interest of the judgment debtor in a tenure or holding. It is, therefore, contended that when the decree is one for arrears of rent in respect of a tenure or holding and the tenure or holding itself is not liable to sale u/s 208 by reason of the omission of the plaintiff to implead all the persons having an interest in the tenure or holding, the decree is incapable of execution by the Deputy Commissioner, If this contention were to prevail, it would follow that although a Deputy Commissioner may make a decree in respect of an arrear of rent even when all persons interested in the tenure or holding are not parties to the suit, he has no power to execute that decree, although Section 182 expressly empowers him to execute any decree made by him under the Act.

In support of his contention the respondent relies on Pratap Udai Nath Sahi Deo v. Baraik Lal AIR 1936 Pat. 615 a decision of a Division Bench of this Court, and AIR 1933 122 (Privy Council) a decision of the Privy Council. In the latter case a decree for rent had been obtained without impleading all the persons interested in the tenure, and in execution of that decree the tenure had been put up for sale. A person holding a mortgage then institiuted a suit for a declaration that his interest was not affected by the sale, as the sale held in execution of a decree made in such a suit did not pass the tenure so as to have the effect of annulling a pre-existing encumbrance on it. At the end of the judgment of the Privy Council there is an observation that the sale was void. But a perusal of the passage preceding this observation shows that, on an examination of the claim in the suit, the Privy Council was satisfied that what the decree-holder intended to proceed against was the interest of the defendants in the tenure. What the decision really means is that, if the decree, holder intends to proceed only against the interest of the defendant in the tenure, the sale of the tenure itself is void. The decision cannot be regarded as an authority for the proposition now contended for that, when it is only the right, title and interest of the judgment-debtor that is put up for sale, the sale of such right, title and interest is void. The Division Bench decision of this Court, to which reference has been made, appears, to be based on this decision, the facts of which do not appear to have been fully appreciated.

In Inderjit Nath v. Pratap Udai Nath AIR 1942 Pat. 84 which is referred to in the order of reference it was held by a Division Bench of this Court that Section 198 of the Act governs the execution of a decree for arrears of rent, when the decree, by reason of the omission of a person interested in a tenure, is incapable of execution by sale of the tenure itself. The learned Judges who decided that case appear to have overlooked the words "not being money due or recoverable as an arrear of rent" in that section. The observations regarding Section 210(2) are obiter.

The question remains, however, how a decree for an arrear of rent is to be executed when it is not executable by sale of the tenure by reason of the omission to implead a person who has an interest in the tenure. The only sections of the Act providing for the sale of property of the judgment-debtor in execution of a decree for rent are Sections 208 and 210. As has already been shown, Section 210 relates to property belonging to the judgment-debtor other than the tenure, or any interest he may have in it.

On behalf of the respondent it is contended that a decree for an arrear of rent within the meaning of Section 208 means a decree for an arrear of rent which is executable by a sale of the entire tenure or holding, and excludes a decree which is not so executable. It must be admitted that had there been other provisions in the Act for execution of a decree for an arrear of rent, not executable by sale of the tenure or holding, there would be much to be said for the contention of the respondent. But when you have an Act under which the Deputy Commissioner may pass a decree for arrears of rent, although all the parties interested in the tenure are not impleaded, and the Act authorises the Deputy Commissioner to execute the decree (Section 182) by process of execution against the property of the judgment-debtor (Section 184), it must be presumed that the Legislature intended such a decree to be executable. In the absence of any specific provision for execution of a decree for an arrear of rent, when the decree has been made in a suit from which a person holding an interest in the tenure has been omitted, Section 208 should be so construed as to carry out the intention of the Legislature. Nor is it, indeed, violating the language of that section to apply it to such a case.

A decree such as we have in the present instance is a decree for an arrear of rent in respect of a tenure notwithstanding that a person holding an interest in the tenure was omitted from the suit in which the decree was made, and the section expressly authorises the decree-holder to apply for the sale of the tenure in execution of the decree. Whether the tenure actually passes by the sale is, of course, another matter. In a case where all the necessary parties have been impleaded the tenure itself will pass by the sale. But where a person holding an interest in the tenure has not been impleaded, all that will pass by the sale is the interest of those persons holding an interest in the tenure who are impleaded. In the present case what the decree-holder was entitled to sell was the right, title and interest of the judgment-debtors. That is what the auction-purchaser knew that he was buying. Although the decree-holder wrongly described his application as one u/s 210(2), no one has been prejudiced by this mistake. I would answer the questions formulated in the reference as follows:

(1) Inderjit Nath v. Pratap Udai Nath AIR 1942 Pat. 84 was wrongly decided in so far as it decided that Section 198 of the Act applies to a decree for the payment, of money even when the money is an arrear of rent; and (2) the right, title and interest of the judgment-debtors in the tenure was not saleable u/s 210(2) of the Act.

But, for the reasons stated above, I would hold that the Deputy Commissioner had power to execute the decree by sale of the right, title and interest of the judgment debtor, although his power to do so was not derived from Section 210(2). The appeal is accordingly allowed with costs.

Shearer, J.

I agree.

Imam, J.

I agree.