Sukhraj Roy vs Keshab Mohan Thakur

Manohar Lall, J.—This is an appeal on behalf of a decree-holder who is aggrieved by the appellate order passed by the learned Subordinate Judge of Bhagalpur in an execution proceeding. The sole question for determination is whether the judgment-debtor is entitled to withdraw the excess amount which he deposited to have the sale of his holding set aside in the circumstances narrated below:

The facts necessary for the decision of this question are no longer in controversy and lie within a narrow compass. The decree-holder obtained a rent decree. on 31st May 1938, for an amount which along with the costs of execution came up to Rupees 428-4-0 the amount stated in the sale proclamation issued in Kent Execution Case No. 221 of 1939, started in the second Munsif''s Court, Bhagalpur. The holding was advertised for sale and purchased by the decree-holder for Rs. 451 on 20th November 1939. In the meantime the judgment-debtor had applied to the Rent Reduction Officer for an order to reduce the rent payable u/s 112-A (1)(d), Bihar Tenancy Act. His application was allowed, and by an order dated 7th December 1939, the rent payable for this holding was reduced to Es 64 10-0 instead of Rupees 125-7-10 besides cess which was the rate at which the decree under execution was passed. Accordingly, the judgment-debtor made a deposit on 19th December 1939, tendering the full amount and compensation as required under Order 21, Rule 89, Civil P.C., and he also applied at the same time u/s 15(a), Bihar Restoration of Bakasht. Lands and Reduction of Arrears of Rent Act, (Act 9 of 1938) praying that the total amount which he was depositing to have the sale set aside should not be made over to the decree-holder but only such amount as he was entitled to recover on account of arrears of rent as was finally determined by the Rent Reduction Officer. As the amount in deposit satisfied the requirements of Order 21, Rule 89, the learned Munsif, as he was bound to do, set aside the sale; but he took the view that as the order u/s 15(a) of the Bihar Restoration of Bakasht Lands and Reduction of Arrears of Rent Act had been passed after the sale had been held the judgment-debtor was not entitled to any relief. Prom this order there was an appeal to the learned Subordinate Judge who was of the opinion that the decree-holder could not in law be held to have realised his arrears by the sale which took place on 20th November 1939 and as in the meantime an order binding on the decree-holder was passed by the Rent Reduction Officer, the decree-holder was not entitled to recover the arrears at the rate at which the decree was passed but was entitled to recover at the reduced rate o� Rs. 64-10-0 only.

He accordingly decided that the judgment-debtor was entitled to refund of the excess amount from the decree-holder. Hence the appeal to this Court.

It is argued on behalf of the decree-holder-appellant that the view taken by the learned Munsif was correct and that the provisions of the Bihar Restoration of Bakasht Lands and Reduction of Arrears of Rent Act are inapplicable to the circumstances of this case. In my opinion, this contention is without any substance.

It should be stated at the outset that the Courts below did not realise that the application which was filed on behalf of the judgment-debtor could not be an application under Order 21, Rule 89, Civil P.C., but must be treated as if it was an application u/s 174, Bihar Tenancy Act. This was not seriously challenged by the appellant. Too much importance need not be attached to the label which has been put upon the application as has been pointed out by their Lordships of the Judicial Committee in a very recent case. Accordingly, I proceed to consider the question in controversy before me treating the application as if it was an application u/s 174(1), Bihar Tenancy Act. That section provides:

Where a tenure or holding is sold for an arrear of rent due thereon, them at any time within thirty days from the date of sale, the judgment-debtor...may apply to have the sale set aside on his depositing in Court, for payment to the decree-holder, the amount recoverable under the decree with costs..." (I am quoting only such part of the section which is relevant to this case, as the decree-holder is the auction-purchaser himself.)

What then is the meaning of the words "the amount recoverable under the decree"? It is argued on behalf of the appellant that the amount recoverable under the decree was the amount for which the sale was held. On the other hand, it has been argued on behalf of the respondent that the amount recoverable under the decree was the amount which was due on the date when the deposit was made on 19th December 1939 and reliance was placed upon a case of the Calcutta High Court reported in Bhikhi Singh v. Bhanu Mahton (''99) 3 1939 C.W.N. 231. In that case the learned Judges pointed out that where the rent decree for which execution was sought for had ceased to exist by having been altered in favour of the judgment-debtor by the appellate Court before the date fixed for sale, the amount which the judgment-debtor was entitled to deposit was the amount for which the decree ultimately stood under the orders of the Appellate Court, and. made these observations at page 232.

The decree of the Court of first instance had then ceased to exist and in place thereof came in the decree of the appellate Court, and therefore it seems to us that the word ''decree'', as mentioned in Section 174, must refer to the decree which was the binding decree between the parties at the time when the sale took place, and the application under that section was made.

We can hardly think that the Legislature ever intended that in circumstances like these, the judgment-debtor should have to deposit the amount covered by a decree which did not exist at the time but had been superseded in appeal, for otherwise a manifest injustice would be done to the judgment-debtor.

No doubt the judgment-debtor if he deposits the full amounts covered by the decree of the Court of first instance is not without remedy in regard to the recovery of the excess amount paid. But we do not think that the Legislature contemplated that he should be compelled to do so and then seek his remedy elsewhere.

This case was relied upon by the learned advocate for the respondent, but I do not think it expressly applies to the facts of this case, because here the decree for which the sale was held was not altered before the date fixed for the sale of the holding. The decree in the present case had been altered by the operation of the Bihar Restoration of Bakasht Lands and Reduction of Arrears of Kent Act in consequence of the order passed by the Rent Reduction Officer after the date of the sale. Further, the question as to the amount which should have been deposited in this case is not in controversy, because as stated above, the judgment-debtor had deposited the full amount for which the sale was held. Therefore, the requirements of Section 174(1), Bihar Tenancy Act, have been literally complied with. It was laid down by the Pull Bench of this Court in Sukhoo Sao and Another Vs. Sita Ram Hajjam and Others, that the amount which a judgment-debtor is required to deposit is the amount which is recoverable under the decree on the date when he makes his application u/s 174, Bihar Tenancy Act.

The amount recoverable under the decree in the present case on the date of the deposit was considerably reduced from Rs. 428-4-0. The judgment-debtor therefore was not required to deposit the whole of this sum, but as the judgment-debtor ex cautela deposited the whole of the amount the sale was bound to be and has been correctly set aside.

Can then the decree-holder recover the whole of the decree which he had obtained before the Rent Reduction Officer had passed his order? The situation is that the judgment, debtor has now deposited an amount for the arrears of rent for which the decree was passed. He brings to his aid the mandatory provisions of Section 15(a) of the Bihar Restoration of Bakasht Lands and Reduction of Arrears Rent Act that where the rent of an occupancy holding has been settled or reduced under the provisions of Section 112-A, Bihar Tenancy Act, a landlord shall not, in any suit or proceeding instituted before or after the date on which this section comes into operation, 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 settled or reduced, whether such arrears of rent accrued due before or after such rent was settled or reduced. These provisions are made applicable to proceedings for the execution of a decree by Section 20: see Syed Razaur Rahman and Others Vs. Udit Singh and Others, . Applying these provisions, I am satisfied that the decree-holder is not entitled to recover from the judgment-debtor by the machinery of the Court in the execution department the arrears of rent beyond the amount fixed by the Rent Reduction Officer. It has been established by high authority that the proceedings in execution do not terminate with the sale so that before the sale is confirmed the proceedings still continue to be proceedings in execution. The reason for this is that so long as the decree-holder does not become the auction purchaser after the Bale is confirmed or so long as the decree-holder is not entitled to withdraw the amount paid in Court by the auction purchaser after the sale has been confirmed, the decree is still in the process of realization. The situation often arises where an auction purchaser either fails to make the initial deposit or, after making the initial deposit, fails to make the final deposit or where the sale is for other reasons set aside. In all these cases it can never be said that by mere sale which has never reached the stage of confirmation the decree has been realised. Again, where the decree itself has been set aside or varied before the sale has been confirmed, the executing Court is bound to set aside the sale acting under its inherent powers u/s 151, Civil P.C.

After this judgment was prepared, I found that in P.C. Lal Choudhury Vs. Bilto Mahto, Dhavle, J. has come to the same conclusion by considering two Division Bench cases of this Court. For these reasons the appeal fails and must be dismissed with costs. Leave to appeal is granted.