Inderdeo Sahai vs Maharaja Bahadur Ram Ranbijay Prasad Singh

Fazl Ali, J.—This is a Letters Patent appeal from the decision of a learned Judge of this Court in an execution proceeding arising out of a rent suit. The rent suit was instituted in 1938 to recover rent for the years 1342 to 1345 F., for a certain holding, and the suit was decreed on 14th March 1939. It was provided in the decree that the plaintiff was entitled to recover renfat the rate of Rs. 182-13-6 and cess at the rate of Rs. 18-4-9 per year. Afterwards there was a rent reduction proceeding and the rent of the holding was reduced u/s 112A, Bihar Tenancy Act, to Rs. 89-9-0 per year. The judgment-debtor thereupon applied to the executing Court for modifying the decree, and the decretal amount was reduced according to the new rate. No reduction was, however, effected in the amount of the cess due for the holding. The judgment-debtor thereupon preferred a petition of objection in the Court which was executing the decree with the following prayer: (1) That cess should be calculated at the usual rate on the reduced amount of rent and (2) that the decree-holder was not entitled to any interest u/s 15 (c) of act 9 of 1938. This should be disallowed. The first prayer has been rejected by all the Courts, but there has been a difference of opinion with regard to the second prayer. The Munsif held that the decree-holder was entitled to interest on the reduced amount, and this has also been held by the learned Judge of this Court against whose decision this appeal has been preferred. The learned District Judge, on the other hand, was of the opinion that the language used in Section 15(a) was clear and unambiguous, and under that provision the decree-holder was not entitled to any interest '' on the reduced amount. The judgment-debtor has now preferred this appeal under the Letters Patent, and it is contended on his behalf that both the prayers made by him in his objection petition filed before the executing Court ought to have been allowed.

I will first deal with the question of interest which seems to me to be the more important question. Section 15, Clause (c) of act 9 of 1938 provides:

Notwithstanding anything to the contrary contained in any law, if in any suit or proceeding the claim of a landlord for an arrear of rent due in respect of a holding is reduced in accordance with the provisions of Clause (a) or Clause (b) of this section, the landlord shall not, in such suit or proceeding, be entitled to recover any interest on the amount of the arrear as so reduced.

It is common ground that the rent has been reduced in the present case u/s 15, Clause (a), and the only question to be decided is what is the meaning of the words "the amount of the arrear as so reduced." It was contended that this expression means not the reduced amount of rent or the amount which is payable as a result of the rent reduction proceedings but the amount which has been knocked off in the rent reduction proceedings. In my opinion, the expression "the amount of the arrear as so reduced" does not admit of any ambiguity. It means the amount of the arrear which is payable as a result of the rent reduction proceedings. But if there should be any doubt as to the meaning of this expression, it would be completely removed by referring to Section 19, Clause (b). Section 19, Clause (b) runs as follows:

When the Collector has reduced any arrears of rent u/s 18, the amount of the arrears as so reduced shall be deposited by the raiyat with the Collector within a period of 18 months from the date of the order of reduction either in one lump sum or in such instalments as may be fixed by the Collector.

There can be no doubt that the expression "the amount of the arrears as so reduced" as used in this section refers to the reduced amount, that is to say, the amount which is payable as a result of the rent reduction proceedings. There can also be no doubt that the expression "the amount of the arrears as so reduced" has the same meaning in Section 15, Clause (c). It is, therefore, clear that the view taken by the learned District Judge as to the meaning of Section 15, Clause (c) was correct, and the decree-holder is not entitled to any interest on the reduced amount.

Mr. Sinha who appears on behalf of the decree-holder contends that in any event the decree-holder is entitled to interest on the amount which has been knocked off as a result of the rent reduction proceedings. The process of reasoning by which he arrives at this result is as follows. It is contended by him that the rent decree awards interest on the entire amount of rent which was claimed by the decree-holder, that is to say, on Rs. 182-13-6. The result of the rent reduction proceedings was that the rent was reduced to Rs. 89-9-0 and u/s 15, Clause (a) only this amount was recoverable by execution; but there is nothing in the section or in any other section of Act 9 of 1938 which provides that the decree in regard to interest on the rest of the amount claimed is to be set aside or ignored.

It is contended by Mr. Sinha that Act 9 of 1938 should be strictly construed, and the rights which have been conferred upon the decree-holder by the decree should not be taken away, unless they are found to have been expressly taken away by any of the provisions of Act 9 of 1938.

In order to deal with this argument, it seems to be necessary to refer to the provisions of Section 15, Clause (a) under which the rent in the present case was admittedly reduced. Section 15, Clause (a) provides that "where the rent of an occupancy holding has been reduced, a landlord shall not, in any suit or proceeding....be entitled to recover from the raiyat....any arrears of the rent of such holding in respect of the year 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." The question is what is meant by "arrears of the rent" in this provision. A reference to Section 161, Bihar Tenancy Act, will show that under that section the terms "arrears" and "arrear of rent" shall be deemed to include interest decreed u/s 67. If this is the interpretation to be given in the present case, then it is quite clear that after the reduction the landlord cannot recover any amount whether by way of principal or by way of interest in excess of the amount which is held to be payable as a result of the rent reduction proceedings. But it is contended that Section 161 cannot be brought into aid in the present case because it clearly states that the terms "arrears" and "arrear of rent" are to be construed in the manner stated in that section only "for the purposes of this Chapter," that is to say, the chapter relating to sale for arrears under a decree. Even assuming that this objection has substance it seems to me that even on a plain reading of Section 15 of Act 9 of 1938 it is impossible to hold that the decree-holder is entitled to interest on the amount of the arrears which have been disallowed. The result of the rent reduction proceedings is that the entire claim of the decree-holder including principal and interest is reduced, and Section 15, Clause (c) provides that the decree-holder is not entitled to interest on the reduced amount, the interest which he now claims is merely accessory to the principal which has been disallowed and it is difficult to hold that while the principal is not recoverable, the interest is still recoverable.

The second point which was urged on behalf of the appellant in this case, was that cess should be calculated at the usual rate only on the reduced amount of rent. It is contended that this should be so. because Section 41, Cess Act, provides that every raiyat shall pay cess upon the rent payable by him, and as the rent payable by the appellants now is Rs. 89-9-0 only, cess must be charged only upon this amount and not upon the amount of rent originally claimed in the suit. The argument may be a plausible one, but what it overlooks is that in the present case there is already a decree for cess as well as for rent, and the decree provides that cess is recoverable at the rate of Rs. 18-4-9. This cess is recoverable over and above the rent and is not affected by the rent reduction proceedings. There is further nothing in act 9 of 1938 to suggest that after a decree has been passed the decree-holder cannot recover the entire amount of the cess which has been decreed. In my opinion the learned Judge of this Court as well as the Courts below were right in holding that the decree-holder is entitled to recover the entire amount of cess decreed.

In the result I would uphold the order of the learned Judge, so far as cess is concerned but would set aside his order in regard to interest and hold that no interest is payable on the amount which has been found to be payable as a result of the rent reduction proceedings. The parties will be entitled to costs in proportion to their success in all the Courts.

Harries C.J.

I agree.