Samarendra Nath Roy vs Raja Rao Dhirendra Narayan Roy

K.C. Das Gupta, J.—The Respondents obtained on September 21, 1950, a decree for arrears of rent against the Appellants and started the present execution case on January 16, 1954. The mode in which the assistance of the court was required was stated, in para. 11 of the application, to be the sale of movable properties belonging to the judgment-debtors and if that was not sufficient then by attachment and sale of certain immovable properties details of which were given in the schedule tot the application. The judgment-debtors objected to the execution on the basis of Section 168A of the Bengal Tenancy Act. They also relied for their objection on a certain stipulation in the document creating the darpatni lease in respect of which the lease had been obtained. The executing court upheld both these objections and allowed the miscellaneous case and passed the following order:

The prayer of the decree-holders for execution of decree against the movables of the judgment-debtors is disallowed. They may amend the execution petition and make suitable prayer for realisation of the decretal dues.

Instead of amending the application in accordance with the permission granted by the executing court, the decree-holders appealed. The court of appeal agreed with the executing court that the provisions of Section 168A of the Bengal Tenancy Act were a bar to the execution of the decree by proceeding against any property other than the holding in arrears. He thought, however, that as the darpdtni tenure was non-existent, it was reasonable to allow the decree-holder to fall back on the movables. He held further that the stipulation in the kabuliyat that the landlord would recover his dues from the tenure in the first instance and could only fall back upon the movables and other immovables if the tenure was not sufficient was of no assistance to the judgment-debtors as the tenure did not exist at all. Accordingly he allowed the appeal and dismissed the application u/s 47 of the CPC and ordered that the decree-holder would be allowed to execute the decree by attachment of movables as prayed for by him. It is against this decision of the appellate court that this appeal has been preferred by the judgment-debtors.

The real question undoubtedly is whether Section 168A of the Bengal Tenancy Act is a bar to execution of the decree by attachment of the movables. If that bar exists, I find it difficult to understand how the Court can give relief on the ground that the darpatni tenure has ceased to exist. It is well to remember that the function of the Court is to interpret the law while the function of the legislature is to legislate. If on a correct interpretation of the statutes and consideration of other law the Court finds that the decree-holder cannot execute by attachment of movables, the Court has no power in law to give him relief as the learned appellate court has done on the ground that "as the darpatni tenure is non-existent, it is reasonable to "allow the decree-holder to fall back on the movables". To give such relief though the law does not allow him to do so, would be usurping the function of the legislature.

Before us the arguments have been mainly, if not wholly, directed to the question of the applicability of Section 168A of the Bengal Tenancy Act. As already stated, both the courts below agreed in thinking that Section 168A of the Bengal Tenancy Act did apply and the proviso to Sub-section (1) of Section 168A was not applicable. The first question that arises for consideration is whether the provisions of Section 193 of the Bengal Tenancy Act or the provisions of Section 168A would apply to the present case. Section 193 provides:

The provisions of this Act applicable to suits for the recovery of arrears of rent shall, as far as may be, apply to suits for the recovery of anything payable or deliverable in respect of any rights of pasturage, forest-right, rights over fisheries and the like.

It has been contended before us, as it appears to have been contended before the Court of appeal below, that the amount that was recovered in this case was not in respect of anything payable in respect of a right over fisheries but of something payable in respect of a right of fisheries. The distinction between a right of fishery and a right over fishery has been stressed in several cases which were cited before us. The question is, however, really one of fact in the circumstances of each case whether the amount sought to be recovered or recovered was in respect of a right of fishery or a right over fishery. In this case the darpatni lease was put in evidence and on examination of the entire document I have come to the conclusion that what was leased in substance, was a right over fishery and not a right of fishery. The fact that it was a darpatni lease granted by a patnidar to a darpatnidar would itself be a reason for thinking that what was being leased was not a right of fishery which is equivalent to a right to fish but a right over fishery. Apart from that, an examination of the actual property which was leased also indicates that the subject matter of the darpatni tenure was not a right of fishery but a right over fishery.

I had no doubt, therefore, that the provisions of the Bengal Tenancy Act including the provisions of Section 168A would apply to all suits for the recovery of the amounts payable by this darpatni lease.

But it was said on behalf of the Respondents that Section 193 extends to suits for the recovery of anything payable or deliverable in respect of any pasturage right, forest-right, rights over fishery and the like, all the provisions of recovery of arrears of rent but says nothing about the provisions of the Act applicable to execution proceedings in execution of decrees obtained in such suits. A complete answer to this contention is provided by what we find in Section 148 of the Bengal Tenancy Act. That section opens with the words:

The following rules shall apply to suits for the recovery of rent:

and then lays down rules in Clause (a) to (o). An examination of these clauses shows that some of these only relate to the stage before a decree has been obtained but several relate to the stage after decree has been made and two at least to the stage of execution proceedings. Sub-clause (iii) of Clause (k) of that section says:

Within seven days after the passing of a decree under Sub-clause (ii) the court shall send at the cost of the Plaintiff to the Defendant or Defendants against whom the decree has been passed a registered postcard in the prescribed form stating the particulars contained in the decree and no action in execution of a decree shall be taken until a period of sixty days has elapsed since the date of the decree.

Clause (n) is in these words:

Notwithstanding anything contained in Sub-rule (3) of rule (11) of Order XXI in schedule I to the Code of Civil Procedure, 1908, the court shall not, unless for special reasons to be recorded in writing, direct the decree-holder to file a copy of the decree or any fresh vakalatnama for the purpose of executing the decree.

Clause (o) is in these words:

Notwithstanding anything contained in Rule 16 of Order XXI in schedule I to the Code of Civil Procedure, 1908, an application for the execution of a decree for arrears obtained by a landlord shall not be made by an assignee of the decree unless the landlord''s interest in the land has become and is vested in him.

An examination of these clauses, therefore, makes it clear that the legislature considered the rules as regards execution proceedings also as covered by the rules applying to suits for recovery of rent. It is, in my opinion, reasonable to hold that when in Section 193 they use the words "the provisions of this Act "applicable to suits for the recovery of arrears of rent", they intended to include therein provisions applicable to execution proceedings in respect of decrees in such suits.

I have, therefore, come to the conclusion that Section 168A of the Bengal Tenancy Act applies to the present execution proceedings. The effect of the provisions of Sub-section (1) of that section is that the decree "shall not be executed by the attachment "and sale of any movable or immovable property other than the "entire tenure or holding to which the decree or certificate "relates". This is subject to a provision that the provisions of this Sub-section "shall not apply if, in any manner other than by "surrender of the tenure or holding, the term of the tenancy "expires before an application is made for the execution of such "a decree or certificate". There is no scope for the operation of this proviso as the expiry of the term of the tenancy in the present case, which was as a result of the Estates Acquisition Act which became law in April, 1955, took place long after the application for execution.

I can, therefore, see no escape from the conclusion that in view of the provisions of Section 168A of the Bengal Tenancy Act, the decree-holders are barred from executing their decree by the attachment and sale of any movable or immovable property other than the darpatni tenure in respect of which the decree was obtained. It is true that darpatni tenure is non-existent. But, as I have already stated, it is not possible for the courts of law to give the decree-holder relief on that ground as that would amount to legislation.

I would, therefore, allow this appeal, set aside the order passed by the courts below and order that the application u/s 47 of the CPC be allowed and the execution case be dismissed. The Appellant will get his costs from the Respondents in this Court. Let the records be sent down early.

Guha, J.

I agree.