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Citation Codes
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citation codes
Case Number
Attorney(S)
  • Babu Jogesh Chandra Roy, Babu Bipin Behari Ghosh, Babu Kali Kinkar Chakravarti and Babu Ramesh Chandra Sen, for the appellant.
  • Babu Sarat Chandra Roy Chowdhury and Babu Krishna Kamal Mailra, for the respondent.
Judges
  • Greaves
  • Newbould, JJ.
Acts
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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Babu Jogesh Chandra Roy, Babu Bipin Behari Ghosh, Babu Kali Kinkar Chakravarti and Babu Ramesh Chandra Sen, for the appellant.
  • Babu Sarat Chandra Roy Chowdhury and Babu Krishna Kamal Mailra, for the respondent.
Judges
  • Greaves
  • Newbould, JJ.
Acts
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Smart Summary

Case Summary — Greaves and Newbould, JJ. (Appeal against Subordinate Judge, Mymensingh)

Factual and Procedural Background

This is an appeal by the plaintiff against an order of the Subordinate Judge of the third Court of Mymensingh dated 30 April 1917. The plaintiff's suit sought rent in respect of a particular tenure formerly held by the defendants; that tenure was sold for arrears of rent on 8 Falgun 1320 (as recorded in the judgment). The Subordinate Judge granted a decree in favour of the plaintiff for Rs. 2,191-12-6 pies and cesses at Rs. 286-11-1 pie per year, aggregating Rs. 5,900-14-3 pies, but limited execution to the securities referred to in a prior compromise.

The plaintiff appealed on two primary grounds: (1) the Subordinate Judge erred by confining the decree to the security specified in the plaint instead of granting a personal decree against the defendants; and (2) the Subordinate Judge erred in disallowing the claim for the Ashar kist of 1318 on limitation grounds.

The relevant background facts in brief (as set out in the opinion):

  • On 12 April 1892 Annada Mohan Roy's father demised the tenure to the defendants at a rental of Rs. 2,192.
  • Annada Mohan prosecuted a rent suit which, on 23 February 1909, was compromised on appeal (Appeal No. 516 of 1907). Clause (b)(i) of that compromise (a modification of the mirash ijara pottah) granted Annada Mohan or his heirs the option to realise any future rent decree by sale of the mirash ijara or by sale of the defendants' interest in Schedule B property, but expressly disallowed levy of execution against the persons of the defendants or any other property except those in Schedules A or B.
  • The present plaintiff purchased Annada Mohan's zemindari interest on 7 February 1910.
  • On 28 July 1911 the plaintiff sued for rent from Chaitra 1316 to Ashar 1318. A decree was obtained on 23 July 1912 with sale directed; the Ashar kist of 1318 was subsequently disallowed on appeal as premature. The plaintiff appealed to the High Court on 18 March 1915 but withdrew.
  • On 29 November 1912 the plaintiff sued for rent from Kartik to Chaitra 1318, obtained a decree, and purchased the tenure in execution on 21 February 1913.
  • The present suit was commenced on 7 April 1916 seeking the rent described above, including the Ashar kist of 1318. The Subordinate Judge held that the Ashar kist was time‑barred, granted the decretal amount, and limited execution to the securities referred to in the 1909 compromise.

Legal Issues Presented

  1. Whether the Subordinate Judge erred in confining execution of the decree to the specified securities under the compromise (solenama), rather than granting the plaintiff a personal decree against the defendants.
  2. Whether the claim for the Ashar kist of 1318 is barred by limitation, or whether the plaintiff can rely upon section 14 of the Limitation Act to prevent time from running while prior proceedings were pending.

Arguments of the Parties

Appellant's (Plaintiff's) Arguments

  • The Subordinate Judge should not have limited execution to the security mentioned in the plaint but should have passed a personal decree against the defendants.
  • The claim for the Ashar kist of 1318 should not have been disallowed as barred by limitation (implicitly contending that limitation did not run or was suspended by prior proceedings).

Respondents' (Defendants') Arguments

  • The clause in the solenama (the compromise) barred the plaintiff from obtaining a personal decree against the defendants; execution was limited to the specified properties only.
  • It was submitted that a prior decision (the decision of 18 July 1916 in R.A. No. 531 of 1913) involved different persons and was therefore not binding for the present appeal.
  • It was also urged that a decision printed at page 5 of the respondents' paper book operated as res judicata — an assertion that the Court rejected on the facts because the earlier decision arose when the landlord‑tenant relationship still existed, unlike the present circumstances.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Forbes v. Maharaj Bahadur Singh Referred to as authority for the proposition that, by virtue of statutory provisions (section 65 of the Bengal Tenancy Act), a person who had ceased to be the zemindar could not enforce a decree as a rent decree (i.e., could not execute it as a rent decree under that Act). The Court held that Forbes was limited to the point that under section 65 a decree could not be executed as a rent decree after the landlord had ceased to be zemindar; the Court did not read Forbes as deciding that such a decree was not a decree for rent for all other purposes (notably the construction of the solenama).
Decision in R.A. No. 531 of 1913 (decretal judgment dated 18 July 1916) Construction of the solenama: held that where the landlord had ceased to be the landlord at the time of obtaining a decree against his tenants, the decree was not a "decree for rent" within the meaning of the solenama and therefore was not subject to the solenama's limitation of execution to specified securities. The Court regarded this prior decision as directly applicable and binding on the present question of construction of the solenama. Relying on it, the Court concluded that the present plaintiff was entitled to a personal decree (subject to the modification described in the order).

Court's Reasoning and Analysis

The Court proceeded in two steps corresponding to the two points of appeal.

1. Limitation and the Ashar kist of 1318

The Court observed that the Ashar kist of 1318 was plainly barred by limitation unless section 14 of the Limitation Act applied to suspend time. The Court rejected the plaintiff's reliance on section 14: the earlier suit did not fail for want of jurisdiction or "other causes of like nature" that would render the forum unable to entertain the claim. Rather, the earlier Court refused the kist because the claim was premature (the instalment had not yet matured) at the date of that suit. Because the earlier proceedings were not proceedings in a court incapable of entertaining the claim, time was not suspended by virtue of section 14, and the Ashar kist remained time‑barred. The Court therefore affirmed the Subordinate Judge's decision on this point.

2. Construction of the solenama and entitlement to a personal decree

The Court addressed whether the compromise (solenama) clause that limited execution to specified properties prevented the plaintiff from obtaining a personal decree against the defendants when, at the time of the suit and decree, the landlord‑tenant relationship had ceased.

The judges acknowledged that, had this been a fresh question (res integra), they might have inclined to hold that the solenama barred a personal decree and that the mere fact that the parties had ceased to be in the landlord‑tenant relationship would not convert a rent decree into anything other than a decree for rent. However, the Court regarded itself as bound by the prior decision in R.A. No. 531 of 1913 (judgment dated 18 July 1916), which had interpreted the solenama in circumstances that the Court found to be "identical, mutatis mutandis" with the present case. In that earlier decision it had been held that, where by virtue of statutory provisions (as explained in Forbes v. Maharaj Bahadur Singh) the decree could not be executed as a rent decree, the decree must be treated as a money decree and did not fall within the provisions of the solenama restricting execution.

The Court examined Forbes v. Maharaj Bahadur Singh and limited its application: Forbes established that under section 65 of the Bengal Tenancy Act a person who had ceased to be zemindar could not enforce the decree as a rent decree; it did not necessarily hold more broadly that the decree ceased to be a decree for rent for all purposes. Nevertheless, because the 18 July 1916 decision had construed the solenama to mean that such a decree was not one for rent within the solenama's terms, the Court felt itself bound by that legal determination even though different parties were involved in the earlier case. The Court treated the question as one of pure law (construction of the solenama) and therefore concluded the prior decision was binding.

The respondents' contention that the prior decision was not binding because it involved different parties was rejected on the basis that the earlier ruling disposed of the legal question of construction. The respondents' res judicata argument based on a decision printed at page 5 of their paper book was also rejected because that earlier decision arose while the landlord‑tenant relationship still existed, unlike the present case in which the tenants had ceased to be in possession.

Holding and Implications

APPEAL ALLOWED; ORDER MODIFIED.

Holding (core ruling):

  • The Court allowed the appeal to the extent of holding that the appellant (plaintiff) is entitled to a personal decree against the defendants. The Subordinate Judge's order was modified so that the decretal amount is to be realised first by sale of the security mentioned in the plaint; on default of realisation of the decretal amount or any part thereof from that security, the plaintiff is at liberty to enforce the decree as a personal decree against the defendants.
  • If, as suggested in the hearing, the security has already been realised, the plaintiff is entitled to enforce the decree at once as a personal decree.
  • The plaintiff is entitled to his costs of the hearing in the High Court.

Implications:

  • The direct practical effect is that the plaintiff may seek satisfaction of the decretal amount firstly from the specified security and, if inadequate, from the defendants personally.
  • The decision applies existing authority (the Court's prior decision of 18 July 1916) on the construction of the solenama; the opinion does not purport to lay down a new precedent beyond applying that prior ruling. The Court expressly limited the scope of Forbes v. Maharaj Bahadur Singh to its statutory point under section 65 of the Bengal Tenancy Act and relied principally on the earlier 18 July 1916 decision for the construction of the solenama.

Disposition: Appeal allowed; order of the Subordinate Judge modified in the terms set out above.

Show full summary ...

    Dwarkanath Chakravarti v. Atul Chandra Chakravarti

    Greaves and Newbould, JJ.:— This is an appeal by the plaintiff against a decision of the Subordinate Judge of the third Court of Mymensingh, dated the 30th April 1917. The plaintiff's suit was for rent of a certain tenure formerly held by the defendants but which was sold for arrears of rent on the 8th Falgun 1320 as appears from the judgment. The lower Court gave the plaintiff a decree for a sum of Rs. 2,191-12-6 pies and for cesses at the rate of Rs. 286-11-1 pie per year or in all for a total sum of Rs. 5,900-14-3 pies.

    The plaintiff appeals on two grounds. First of all he says that the Subordinate Judge should not have confined the decree, as he has done, to the security referred to in plaint, but that he should have passed a personal decree against the defendants; and, secondly, it is said that the Subordinate Judge erred in disallowing the plaintiff's claim for the Ashar hist of 1318 as being barred by limitation.

    The necessary facts for the purpose of deciding this appeal are shortly as follows: The father of one Annada Mohan Roy on the 12th April 1892 by a document of that date demised the tenure to the defendants at a rental of Rs. 2,192. Annada Mohan on some date which is not material commenced a suit for rent against the defendants, and on the 23rd February 1909 the suit was compromised on appeal, and it is upon one of the terms of the compromise that one of the questions that arise in this appeal turns. Clause (b) of that compromise decree, which was effected in Appeal No. 516 of 1907, provides—That the terms of the mirash ijara pottah, dated the 1st Bysak 1299, in respect of the properties mentioned in Schedule A were to be modified in the following manner, but that save and except such modification all other terms of the pottah were to remain intact and sub-clause (i) of clause (b), which is the materia clause, provides that Annada Mohan or his heirs should have the option of realising the amount of any decree which he might in future obtain for the rent, of the mirash ijara either by attachment and sale of the mirash ijara or by attachment and sale of the right, title and interest of the defendants 1 to 3 or their heirs, representatives or assignees in the property described in Schedule B; but that Annada Mohan Hoy and his heirs, representatives or assignees should have no right to levy process of execution against the persons of the defendants 1, 2 and 3 or their heirs, representatives or assignees, or against any other property belonging to them save and except either of the properties described in Schedule A or B in execution of any decree for rent in respect of the mirash ijara which Annada Mohan or his heirs, representatives or assignees might in future obtain against the defendants 1 to 3 or their heirs, representatives or assignees. On the 7th February 1910 the plaintiff in the present suit purchased Annada Mohan's interest in the zemindari, and on the 28th July 1911 he sued for rent in respect of the tenure from the month of Chaitra 1316 to the month of Ashar 1318. On the 23rd July 1912 he obtained a decree and the sale of the tenure or security was directed. On the 12th March 1913 an appeal was presented by the defendants against the decree. The judgment was affirmed with this modification that it was held that the Ashar kist of 1318 should not have been allowed in as much as the suit was premature in respect of the kist. On the 18th March 1915 the plaintiff appealed to the High Court, but he withdrew his appeal. On the 29th November 1912 the plaintiff sued for the rent from Kartik to Chaitra 1318. He obtained a decree and on the 21st of February 1913, so we are told, the plaintiff purchased the tenure in execution of the decree, and on the 7th April 1916 the present suit was commenced by the plaintiff in respect of the rent which we have already stated including the Ashar kist of 1318 which had been disallowed in one of the previous suits. The Subordinate Judge has held that the Ashar kist was time barred, but he has granted a decree for the amount which we have already stated, but he has limited the execution of the decree to the securities referred to in the compromise in Appeal No. 516 of 1907.

    We will deal with the second point first, namely, with regard to the Ashar kist of 1318. This is clearly barred by limitation unless the plaintiff is entitled to rely upon the provisions of section 14 of the Limitation Act. We do not think that he is entitled to rely upon this section, because we do not think that he was in the former suit prosecuting his case in a Court which for defect of jurisdiction or other causes of like nature was unable to entertain it. The reason for the Court refusing to entertain the claim for the Ashar kist was not that it had not jurisdiction in respect of it but because the claim was premature as the plaintiff's claim for this kist had not matured at the date of that suit. Therefore we think that the present plaintiff cannot call in aid those former proceedings and say that time did not run against him while those proceedings were being prosecuted. This being so, it is admitted that the decision of the Subordinate Judge was correct upon this point and that the Ashar kist is barred by limitation.

    We now come to the other point. It is said that, as the position of landlord and tenant had ceased to exist at the time the suit was instituted and at the time the decree was passed, the decree was not a decree for rent which could be executed as such but was in the nature of a money decree, and that this being so the clause in the solenama, to which we have already referred, was no bar to the present plaintiff obtaining a personal decree against the defendants in respect of the decretal amount. We confess that if the matter had been res integra we should, as at present advised, have been inclined to hold that the clause in the solenama was a bar to obtaining a personal decree against the defendants in the present suit; and that the fact that they had ceased to be tenants did not make the decree any less a decree for rent although it could not be executed as a rent decree. But the question of the construction of the solenama came up for decision under circumstances which appear to us to be identical, mutatis mutandis, with the circumstances of the present case in R.A No. 531 of 1913 in respect of which the decree of this Court was passed on the 18th July 1916. In that suit the plaintiff was Annada Mohan Roy and the defendants were Atul Chandra Chakravarti Chowdhuri. Rajendra Nath Chakravarti Chowdhuri and Harendra Narain Chakravarti Chowdhuri and the present appellant was a pro forma defendant in the suit.

    It was there contended on behalf of the respondent to that appeal that by virtue of the solenama Annada Mohan Roy could not obtain a personal decide against the contesting defendants. But it was held that in as much as by virtue of the decision in Forbes v. Maharaj Bahadur Singh the decree could not be executed as a rent decree as Annada Motrin was no longer the zemindar, that consequently the decree must be treated as a money decree which did not fall within the provisions of the solenama. With all respect to that decision we do not think that the decision in Forbes v. Maharaj Bahadur Singh, to which we have referred, decided any more than that by virtue of the provisions of section 65 of the Bengal Tenancy Act a person who had ceased to be the zemindar at the time he sued for rent could not enforce his decree as a rent decree in accordance with the provisions of section 65 of the Bengal Tenancy Act. We do not ourselves read it as deciding that the decree was not a decree for rent for other purposes, we should have thought ourselves that the present decree would have fallen within the terms of the provisions of the solenama. But it seems to us that the decision of the 18th July 1916 applies to the circumstances of this case. If a decree obtained by a landlord who had ceased to be the landlord against his tenants is not a decree for rent within the meaning of the solenama, then it seems to us that it must follow from the decision that a decree obtained by a landlord against the tenants who had ceased to be tenants cannot be called a decree for rent within the meaning of the solenama. That being so we think that we are bound sitting here by the decision of the 18th July 1916 upon the construction of the solenama itself.

    It is urged on behalf of the respondents that was a decision between different persons to this appeal and that it is therefore not binding upon us. It seems to us, however, that it was a decision on a question of law (for a question of the construction of the solenama must be of the legal effect of the terms and provisions of the solenama), and that being so it seems to us that this part of the appeal is concluded by the decision of the 18th July 1916.

    One further question was urged before us on behalf of the respondents. It was said that by virtue of the decision which is printed at page 5 of the respondents' portion of the paper book the question is res judicata. We do not think that in any sense it can be said that this is so, for at the time that decision was given the position of landlord and tenant still existed, whereas, as already said, at the present time the tenants have ceased to be in possession of the land.

    For these reasons we think that the appeal must succeed to this extent that the appellant is entitled to a personal decree against the defendants. We therefore modify the order of the Subordinate Judge to this extent that the decree will be realized first of all by the sale of the security mentioned in the plaint and on default of the realization of the decretal amount or any part thereof from that security that the plaintiff will be at liberty to enforce his decree as a personal-decree against the defendants, and if, as is suggested here, the security has already been realized then the plaintiff will be entitled to at once enforce his decree as a personal decree.

    The plaintiff is entitled to his costs of the hearing in this Court.

    G.S
    Appeal allowed: order modified.

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    Comments

    Dwarkanath Chakravarti v. Atul Chandra Chakravarti
    (Mar 5, 1919)