Babu Durga Prasad vs A.H. Forbes

Kulwant Sahay, JJ.—These three appeals arise out of three orders made in three execution proceedings in which the decree-holder took out execution of three decrees for rent and sought to sell the property of the judgment-debtor for realisation of the decretal amount. The property sought to be sold was in the hands of a common manager appointed under the Bengal Tenancy Act. The common manager, who is the appellant in these appeals, filed objections in all these three execution proceedings urging several grounds against the execution and the principal point taken was that the execution against him could not proceed without the sanction of the District Judge.

In the case giving rise to Appeal No. 65, the objector, namely, the common manager failed to appear when the case was called on for hearing and his objection was dismissed for default. In the other two cases the learned Subordinate Judge has held that there is no law which required the decree-holder to obtain the sanction of the District Judge for leave to execute the decree against the common manager and he has accordingly dismissed the objections.

As regards Appeal No. 65, a preliminary objection is taken on behalf of the respondent that as the order appealed against is an order of dismissal for default no appeal lies. This objection is well-founded and must prevail. In fact it is conceded by the learned Vakil for the appellant that the appeal is incompetent, but he says that the matter ought to be considered by us under our powers of revision. As the same question arises in the other two appeals and as it affects the jurisdiction of the Subordinate Judge to execute the decree, I think we ought to accede to the request and treat the memorandum of appeal in Appeal NO. 65 as an application in revision.

The question as to whether execution can proceed without obtaining the sanction of the District Judge depends upon the question as to the legal position of the common manager. If he is considered to be an officer of the Court it is clear that no proceedings ought to be taken against him without obtaining the sanction of the Court which appointed him the common manager. u/s 94 of the Bengal Tenancy Act the common manager may be appointed by the co - owners themselves under orders of the District Judge. Such an appointment will not be an appointment by the District Judge but by the co-owners themselves. If the appointment be made by the District Judge u/s 95 of the Bengal Tenancy Act then Section 98 provides that a manager appointed u/s 95 is to act under the directions of the District Judge. He has under Clause (3) all the powers of the co-owners for the purposes of management of the estate, subject to the control of the District Judge and the co-owners cease to exercise such powers so long as the appointment lasts. Now the payment of rents for tenures or holdings held by the co-owners is an act of management and under Clause (4) the manager has to deal with and distribute the profits in accordance with the orders of the District Judge. The co-owners are declared to be incapable of exercising such powers and the common manager alone can exercise such powers and as such powers have to be exercised under the control of the District Judge the sanction of the District Judge should be obtained before proceedings are taken against the common manager for realization of such rents. That the position of the common manager is analogous to that of a Receiver appointed by the Court was held by the Calcutta High Court in the case of Beni Madhab Sukul v. Upendra Chandra Singha 53 Ind. Cas. 747 : 24 C.W.N. 138 : 30 C.L.J. 279. I am, therefore, of opinion that it was necessary for the decree holder to obtain the permission of the District Judge before taking out execution against the common manager. Under the circumstances, I would set aside the orders of the Subordinate Judge in all these three appeals and remand the cases to him for finding as to whether the appointment of the appellant as common manager was u/s 95 of the Bengal Tenancy Act. If it be found that the appointment was u/s 95, it must be held that the execution proceedings were bad inasmuch as no sanction of the District Judge was obtained.

The appeals succeed and must be allowed with one set of costs.

Ross, J.

I agree.