Guha, J.:— This appeal by the defendants arises out of a suit for recovery of arrears of rent in respect of a dar-patni jamâ. By a subsequent amendment of the plaint, the plaintiff prayed for a declaration of a charge upon the defendants' one-sixth share in the superior patni in terms of a jâminnâmâ for securing the payment of the dar-patni rent.
The facts which are not in dispute are briefly as follows:—
The father of the defendants took settlement of one-sixth share of the patni of the plaintiff in dar-patni right upon a pâttâ executed in 1326 B.S In the said patni the defendants' father had also one-third share and, on the same date as the date of the dar-patni pâttâ, he executed a jâminnâmâ, by which he purported to create a charge upon his one-sixth share in the patni for rent of the dar-patni in dispute. By his amendment of the plaint, the plaintiff wanted to make one-sixth share of the defendants in the patni liable for his dues in respect of the present suit.
The defence, inter alia, was that the provisions of s. 168A of the Bengal Tenancy Act stood in the way of the plaintiff enforcing the contract entered into between the parties upon the jâminnâmâ.
The trial court decreed the suit in part upon the finding that the plaintiff could get a decree for the amount claimed without any charge upon the patni interest of the defendants for the realisation of the dues and that the plaintiff would be entitled to execute the decree against the defaulting tenure only. Against this decision the plaintiff preferred an appeal before the District Judge of Howrah. This appeal was successful. The decision of the trial court was modified and the plaintiff's suit was decreed in full. In the opinion of the court of appeal below, s. 168A of the Bengal Tenancy Act was not a bar to the enforcement of the charge provided for in the jâminnâmâ. Against this decision the defendants have preferred this appeal.
It has been contended before us by Mr. Mukherji on behalf of the appellants that, upon a proper construction of the jâminnâmâ, it did not create a charge and we have been taken in this connection through the various provisions of the jâminnâmâ. As regards this contention, it may be observed at the outset that in the courts below it was conceded on behalf of the defendants that the jâminnâmâ did create a charge. Be that as it may, upon considering the terms of the document carefully, we have reached the conclusion that a charge was created by the jâminnâmâ. The terms of the document come within the clear words of s. 100 of the Transfer of Property Act. It is clear from the recitals of the document that a certain share of the defendants' patni interest was made security for the payment of money to the plaintiff in respect of the dar-patni rent. The contract, accordingly, amounted to a charge, as has been found by the courts below. As the contract amounted to a charge, no attachment would be necessary in execution of the decree, as pointed out by the court of appeal below. No attachment of the defendants' patni interest will be necessary in execution of a decree with declaration of a charge, if any such decree is passed in favour of the plaintiff.
The next point for consideration is whether in these circumstances s. 168A of the Bengal Tenancy Act stands in the way of the plaintiff. It is contended on behalf of the appellants that s. 168A stands as a bar in the way of the plaintiff in enforcing the contract upon the jâminnâmâ. Section 168A(1)(a) lays down that, notwithstanding anything contained in any contract, a decree for arrears of rent due in respect of a tenure or holding, whether having the effect of a rent decree or money decree, shall not be executed by the attachment and sale of any property other than the entire tenure or holding to which the decree relates. In the present case, as has been observed before, no attachment of the defendants' patni interest will be necessary in execution of the decree obtained by the plaintiff with declaration of a charge. Now the question is whether in these circumstances s. 168A(1)(a) can defeat the right of the plaintiff. In our opinion, the answer should be in the negative. As pointed out in the case of Pratul Chandra Ghosh v. Naresh Chandra Basu,(1), as s. 168A is an encroachment on the rights which the landlord decree-holder had under the ordinary law, the ambit of that section ought not to be extended beyond what is warranted by its actual language. In s. 168A(1)(a) the words used are “attachment and sale”. In the present case there will be no attachment and, on a plain reading of the section, therefore, it would appear that it will not stand in the way of the plaintiff. Mr. Mukherji on behalf of the appellants has, however, drawn our attention to certain observations of Mukherjea, J. in the case of Anil Kumar Basu v. Biman Bihari Mitra(2). He has laid particular stress upon the following passage in the judgment of Mukherjea J:—
The intention of the legislature was obviously to prevent the sale of any property belonging to the judgment-debtor other than the tenure in execution of a rent-decree. An attachment comes within the prohibition of the section only so far as it is a necessary step to the sale of the property.
Relying upon this passage, Mr. Mukherji contends that the primary intention of the legislature in enacting s. 108A being to prevent the sale of any property of the judgment-debtor other than the tenure, in the present case as well, which is one of sale without attachment of the defendants' patni interest, s. 168A will be applicable. This contention appears to us to be without much substance. In the passage in question, upon which such strong reliance has been placed by Mr. Mukherji, it appears that the word “sale” was used in a somewhat broad sense, as certain other passages of the judgment will show. It is significant that in s. 168A the relevant words are “attachment and sale” and not “attachment or sale”. As pointed out in Anil Kumar Basu's case, referred to above, the words have been taken verbatim from s. 51(b) of the Code of Civil Procedure, the latter part of the clause, namely, “by sale without attachment of any property”, being not reproduced in s. 168A of the Bengal Tenancy Act. The omission of those words “by sale without attachment of any “property” is significant and it seemed to imply that it is only that mode of execution, namely, by attachment and sale, which is affected by s. 168A of the Bengal Tenancy Act. Section 168A has to be construed strictly and, upon such strict construction, the present case does not, in our opinion, come within the mischief of that section. That being so, s. 168A cannot stand as a bar in the way of the plaintiff in enforcing the contract upon the jâminnâmâ.
In the result, the decision of the court of appeal below is upheld and this appeal is dismissed with costs.
The decree, however, will be_drawn up by the court below according to the Form No. 5A of Appendix D of the Code of Civil Procedure, so far as is practicable.
Lahiri, J.:— I agree.
Appeal dismissed.
K.B