Surya Mohan Thakur vs Mt. Bibi Tasiran Nisan and Others

Chatterji, J.—The subject of the dispute which has given rise to this appeal is an occupancy holding of 8.89 acres of which the landlords are, as to twelve annas share, defendants 1 and 2 and, as to the remaining four annas, defendant 4. On 19th September, 1932 defendants 1 and 2 filed a rent suit (No. 1107 of 1932) making defendant 4 a party defendant. On the same date defendant 4 filed another suit (No. 1120 of 1932) making defendants 1 and 2 parties defendants. Both the suits purported to be under the provisions of Section 148-A, Bihar Tenancy Act. Both the suits were decreed ex parte, Suit No. 1107 on 10th January 1933 and Suit No. 1120 on the following day. On 9th February 1934 defendants 1 and 2 applied for execution of their decree, Defendant 4 also applied for execution of his decree on 26th February 1934. On 21st June 1934 the holding was sold in execution of the decree of defendant 4 and purchased by him.

On 4th July 1934 defendants 1 and 2 also purchased the holding in, execution of their decree. On 15th March 1935 defendant 4 settled the holding with the plaintiff. On 11th January 1936 defendants 1 and 2 settled the same holding with defendant 3. The plaintiff thereupon brought the present suit on, 25th March, 1936 praying for a declaration of his title to and recovery of possession of the disputed holding. The Munsif dismissed the suit on the finding that the decree of defendants land 2 had the effect of a rent decree, while the decree of defendant 4 had the effect of a money decree and therefore what passed at the auction sale to defendant 4 was not the holding itself but the right, title and interest of the judgment-debtor. On appeal the learned Subordinate Judge has reversed the decision of the Munsif, holding that both the decrees had the effect of rent decree and the first sale which was held on 21st June 1934 would prevail. Defendant 2 has preferred this second appeal.

The first point argued by Mr. Ghosh on behalf of the appellant is that the Subordinate Judge was wrong in holding that both the decrees had the effect of rent decree. His contention is that the first decree which was obtained by defendants 1 and 2 on 10th January 1933 was a rent decree, whereas the decree which was obtained on the following day by defendant 4 had the effect of a money decree. In determining the correct position we must proceed on the footing that both the decrees are valid and binding decrees so far as the parties thereto are concerned. Neither party can be heard to say that either of the decrees was wrong or improperly obtained. In the second suit, after the decree in the first suit had been obtained, it could have been objected that the suit was not maintainable because a rent decree under the provisions of Section 148-A, Bihar Tenancy Act for the entire rent of the holding had already been passed.

If this objection had been taken, the position might have been that the second suit would have been held to be not maintainable at all. But it cannot be said that the decree had the effect of a mere money decree, because if the contention of Mr. Ghosh were to be accepted, the second decree was altogether wrong and was improperly obtained because the suit was not at all maintainable. However, it is not open to the appellant to take that position now. As both the suits were framed according to the provisions of Section 148-A, Bihar Tenancy Act both the decrees would be regarded as having the effect of rent decrees.

No doubt an anomalous position arises because there can be only one rent decree for the entire rent of the holding. The real effect of the two decrees taken together was that one was supplementary to the other and that both must be regarded as a consolidated decree for the entire rent payable to the different cosharer landlords in proportion to their shares. If however it was permissible for defendants 1 and 2 to contend that the later decree of defendant 4 had the effect of a mere money decree, they could not consistently maintain that their own decree was a rent decree. The two suits were instituted and carried on simultaneously. In each suit it was open to the landlord defendant to contend, that the suit as framed was not maintainable for the entire rent; of the holding. If such objection had been raised, the Court in each suit might have passed a decree which would not be a decree u/s 148-A, Bihar Tenancy Act.

Mr. Ghosh relies on the decision of Khwaja Mohammad Noor J., in R.C. Deb v. Lachmi Prasad Singh AIR (1934) Pat 350 in support of his contention that the first decree would be a rent decree whereas the second would have the effect of a money decree. The decision however does not really support the contention. His Lordship laid down that a decree passed in a suit framed u/s 148-A, Bihar Tenancy Act must be deemed to be a decree for the entire rent of the holding, and once such a decree has been obtained a similar suit by another cosharer for the same period is not maintainable. At the same time he held: that if in the latter suit a decree is allowed to be passed the decree would operate as res judicata. He stated:

It must be taken that the objection as to the maintainability of the suits was taken by the appellants and decided against them. The decrees are good decrees.

The effect of his decision therefore is that both the decrees, as between the parties thereto, must be regarded in the eye of law as decrees u/s 148-A or, in other words, rent decrees. The next contention raised by Mr. Ghosh is that even assuming that both the decrees were rent decrees, still the auction-purchase of defendant 4 must be held to be subject to, the charge created by the decree of defendants 1 and 2. He relies on Section 65, Bihar Tenancy Act which provides that the rent of the holding shall be a first charge. That does not mean that where there are two rent decrees, if one decree, is executed first and the holding is sold in execution, it will pass subject to the charge created by the other decree. On general principle where there are two decrees of equal priority and in execution of one of them the judgment-debtor''s property is sold, the same property cannot be sold again in execution of the other decree. In Nilambar Sahau v. Suttyo Priya Ghoswal 16 CWN 701 the identical question was raised. The facts of that case were almost similar to those of the present. Two rent suits were brought on the same day by different sets of cosharers under the provisions of Section 148-A, Bengal Tenancy Act.

Decrees however were obtained on different dates. The second decree was executed first and the holding was purchased. It was held that the other decree-holder was not entitled to bring it to sale again. Their Lordships observed as follows:

The only principle which it seems possible to apply in a case like the present where two persons have decrees equal in priority is that the first who takes out execution is the first who is entitled to satisfy his decree by sale of the property and that the other person who delays to take out his execution loses his right to proceed against the property itself.

In my opinion this decision represents the correct view of the law. The result is that the appeal fails and must be dismissed with costs.

Rowland, J.

I agree.