Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Nasim Ali
  • Mitter
  • Sharpe, JJ.
Acts
  • provisions of sec. 168A of the Bengal Tenancy Act are:1 (a)
  • provisions of sec. 168A of the Bengal Tenancy Act.
  • Bengal Public Demands Recovery Act, 1913,
  • sec. 168A of the Bengal Tenancy Act.9.
  • Bengal Tenancy Amendment Act of 1940
  • sec. 141 of the Army Act, 1881,
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Nasim Ali
  • Mitter
  • Sharpe, JJ.
Acts
  • provisions of sec. 168A of the Bengal Tenancy Act are:1 (a)
  • provisions of sec. 168A of the Bengal Tenancy Act.
  • Bengal Public Demands Recovery Act, 1913,
  • sec. 168A of the Bengal Tenancy Act.9.
  • Bengal Tenancy Amendment Act of 1940
  • sec. 141 of the Army Act, 1881,
See more information ...
Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

The Appellants (decree-holders) obtained, on 14 May 1940, a decree for arrears of rent in rent suit No. 2 of 1939 in the Court of the Subordinate Judge at Midnapore for a patni tenure. Prior to that decree the decree-holders' interest in the tenure had been sold in a revenue sale and the judgment-debtors' interest in the patni had been transferred to others so that the decree had the effect of a money decree.

On 21 June 1940 the Appellants initiated execution in Execution Case No. 14 of 1940, seeking realization of the decretal amount by attachment and sale of certain properties of judgment-debtors Nos. 6–9 and 25–28 (properties other than the tenure in arrears). Those properties were attached on 21 December 1940.

The Bengal Tenancy Amendment Act, 1940 (introducing sec. 168A to the Bengal Tenancy Act) came into force on 9 January 1941. On 16 January 1941 judgment-debtors Nos. 6–9 objected to sale of the attached properties invoking sec. 168A. The Subordinate Judge overruled the objections on 25 January 1941. The judgment-debtors appealed (F.M.A. No. 52 of 1941) and this Court allowed that appeal on 27 February 1942. The decree-holder obtained leave to appeal to His Majesty in Council against this Court's order.

On 29 April 1942 the decree-holder filed a further execution application (Execution Case No. 4 of 1942) seeking appointment of a receiver under sec. 51(d) of the Civil Procedure Code in respect of specified properties of the judgment-debtors (not including the tenure in arrears). The judgment-debtors filed objections on 30 May 1942, contending that sec. 168A of the Bengal Tenancy Act prevents the executing Court from appointing a receiver under sec. 51 of the Civil Procedure Code. The executing Court allowed that objection. This appeal by the decree-holders challenges that allowance.

Legal Issues Presented

  1. Whether section 168A of the Bengal Tenancy Act bars the execution of a decree for arrears of rent by modes of execution other than attachment and sale (specifically, whether it prevents appointment of a receiver under section 51(d) of the Civil Procedure Code).
  2. If the defaulting tenure is not available for sale in execution, whether the personal liability of the judgment-debtor continues and the decretal amount can be realised by modes of execution other than attachment and sale.
  3. Whether properties of a judgment-debtor which are exempt from attachment and sale (for example under the proviso to section 60 of the Civil Procedure Code or under section 168A) can nevertheless be made subject to the appointment of a receiver.
  4. Whether appointment of a receiver, who would sell movable produce (for example paddy), would amount to permitting indirectly what section 168A prohibits directly (i.e., sale of movable property in execution).

Arguments of the Parties

Decree-holder / Appellants (position stated in the opinion)

  • The decree-holder applied for execution by appointment of a receiver under section 51(d) of the Civil Procedure Code in respect of specified properties (not the tenure in arrears) to realise the decretal amount.

Respondents / Judgment-debtors (Mr. Gupta)

  • Although section 168A contains no express words forbidding modes of execution other than attachment and sale, the reasonable implication of section 168A(1)(b) is that the judgment-debtor's liability is limited to the defaulting tenure (i.e., the tenant is not personally liable beyond the tenure).
  • The proviso to section 60 of the Civil Procedure Code lists properties not liable to attachment or sale; section 168A(1)(a) likewise lays down properties not liable to attachment or sale; the word “and” in “attachment and sale” in section 168A(1)(a) should be construed as “or” (as in the proviso to section 60), which would imply that if a property is exempt from attachment or sale it cannot be made subject to a receiver.
  • A receiver cannot be appointed over properties exempt from attachment and sale; consequently the executing Court cannot appoint a receiver of properties that cannot be attached or sold under section 168A(1)(a).
  • Because section 168A prohibits sale of the movable property of the tenant judgment-debtor, appointment of a receiver over khamar lands that produce paddy (movable) would enable the decree-holder indirectly to accomplish what section 168A forbids directly (i.e., obtaining sale proceeds of movables in execution).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court in the Present Opinion
Bahadur Singh Singhee, Decree-Holder… v. Sanyasi Charan Ghosh, Judgment-Debtor… (47 C.W.N. 287, 1943) — Henderson, J. Held that section 168A of the Bengal Tenancy Act does not prohibit or affect any mode of execution other than the attachment and sale of the judgment-debtor's property and does not bar arrest and detention. The Court cites this holding as supporting the narrow construction that section 168A is confined to attachment and sale and does not generally bar other modes of execution.
Anil Kumar Basu v. Roy Biman Behari Mitra (48 C.W.N. 344, 1944) — Division Bench Held that section 168A does not bar execution of a rent decree by attachment under Order 21, rule 53 of the Civil Procedure Code in favour of a judgment-debtor; reasoned that section 168A is an encroachment on ordinary rights and must be narrowly construed; there are no words showing that the only form of execution is attachment and sale; a mere attachment without sale is not prohibited. The Court relies on the detailed reasoning in this decision to support the proposition that section 168A should not be extended beyond its language and that it does not prohibit appointment of a receiver under section 51(d) of the Code.
Lucus v. Harris (18 Q.B.D. 127, 1886) An order appointing a receiver of a pension was held bad because by section 141 of the Army Act, 1881 the pension was inalienable by the voluntary act of the person entitled to it; illustrates that where a statute makes a right inalienable, an order of receiver is impermissible. Mr. Gupta relied on this authority to argue that a receiver cannot be appointed of properties exempt from attachment or sale; the Court considered it in assessing limits to appointing receivers but concluded that receivers can be appointed of properties not liable to attachment or sale under section 168A.
Lal Rajendra Narain Singh v. Must. Sundar Bibi (L.R. 52 I.A. 262) Held that the right of maintenance is not attachable or saleable (sec. 60(1)(n) CPC), but in a fit case a receiver can be appointed to realise rent and profits and apply a sufficient sum for maintenance, applying the balance to liquidation of debt. The Court used this authority to support the proposition that appointment of a receiver can be an appropriate remedy even where rights are otherwise not attachable or saleable; it supports the Court's conclusion that receivership is available despite section 168A protections.

Court's Reasoning and Analysis

The Court examined the text of sec. 168A(1)(a)–(b) and the context in which those clauses operate. It observed that sec. 168A(1)(b) presupposes that the defaulting tenure is available and has been sold in execution; in that scenario the purchaser's liability under clause (b) to make up any deficiency arises because the tenure has been sold.

Where, as in the present case, the defaulting tenure is not available to the decree-holder and cannot be sold in execution, the Court reasoned that sec. 168A(1)(b) simply does not come into operation: the personal liability of the judgment-debtor under the decree continues and there is no reason why modes of execution other than attachment and sale cannot be used to realise the decretal amount.

The Court addressed the Respondents' argument that the word “and” in “attachment and sale” should be construed as “or” (to align with the proviso to section 60 CPC) and that receivership should therefore be barred where attachment or sale is forbidden. It relied on the Division Bench reasoning in Anil Kumar Basu that the phrase “attachment and sale” in sec. 168A had been taken verbatim from sec. 51(b) CPC and that “a mere attachment without sale” is not within the purview of sec. 168A; the Court therefore rejected a broad implied prohibition on other modes of execution.

The Court considered authorities cited by Mr. Gupta (Lucus v. Harris and Lal Rajendra Narain Singh). Lucus v. Harris was recognised as showing that where a statute makes a right inalienable (for example by the Army Act) an order of receiver may be impermissible. But the Court found the better view — supported by the Indian authorities — to be that a receiver may be appointed of properties which are exempt from attachment or sale in execution, as a practical remedy to realise rents and profits (per Lal Rajendra Narain Singh).

As to the contention that appointment of a receiver would circumvent sec. 168A by causing sale of movables (paddy) produced on khamar lands, the Court observed that sec. 168A prohibits attachment and sale of movables in execution, but it does not prohibit private sale of movables which do not require previous attachment. On that basis the Court held that appointment of a receiver (who might sell produce) is not tantamount to permitting indirectly what sec. 168A directly forbids.

Drawing these strands together, the Court concluded that sec. 168A does not bar execution of a rent decree by appointment of a receiver under sec. 51(d) of the Civil Procedure Code where, as here, the tenure in arrears is not available for sale and the decree has become a money decree.

Holding and Implications

Holding: The appeal is allowed. The Court held that section 168A of the Bengal Tenancy Act does not bar execution of a rent decree by the appointment of a receiver under section 51(d) of the Civil Procedure Code. The order of the Subordinate Judge (which had allowed the judgment-debtors' objection and refused appointment of a receiver) is set aside, and the Subordinate Judge is directed to proceed with execution by appointing a receiver of the properties mentioned in the execution petition. There is no order as to costs.

Implications:

  • Direct effect on the parties: The decree-holder may proceed with execution by seeking appointment of a receiver of the specified properties (not including the tenure in arrears), and the Subordinate Judge must continue proceedings to appoint such a receiver as prayed for in the execution petition.
  • Legal consequence on interpretation of sec. 168A: The Court applied and endorsed a narrow construction of sec. 168A — confining it to prohibiting attachment and sale of the defaulter's tenure where that tenure is available and sold — and held that, where the tenure is not available, the decree-holder retains recourse to other modes of execution, including appointment of a receiver under sec. 51(d) CPC.
  • On movables produced by land (e.g., paddy): The Court determined that sec. 168A's prohibition of attachment and sale of movables in execution does not extend to forbid private sale of movables that a receiver may lawfully sell, so appointment of a receiver is not necessarily an indirect circumvention of sec. 168A.

Note: This summary is based exclusively on the contents of the provided opinion and does not add facts or inferences beyond that text.

Show full summary ...

    Sudhir Krishna Ghosh And Anr. Decree-Holders, v. Satish Chandra Hui And Ors. Judgment-Debtors,

    Nasim Ali, J.:— On the 14th of May, 1940, the Appellants obtained against the Respondents in rent suit No. 2 of 1939 in the Court of the Subordinate Judge at Midnapore, a decree for arrears of rent of a patni tenure. Before this decree the interest of the decree-holder Appellants was sold away at a revenue sale and the judgment-debtors' interest in the patni was transferred to some other persons with the result that the decree passed in the rent suit had the effect of a money decree. On the 21st of June, 1940, the Appellants put this decree into execution in Execution Case No. 14 of 1940. In the application for execution the Appellants prayed for realisation of the decretal amount by attachment and sale of certain properties belonging to judgment-debtors Nos. 6 to 9 and 25 to 28. These were properties other than the tenure in arrears. The properties were attached on the 2ist December, 1940. On the 9th January, 1941, the Bengal Tenancy Amendment Act of 1940 by which sec. 168A was introduced into the Act came into force. On the 16th January, 1941, the judgment-debtors Nos. 6 to 9 filed a petition, objecting to the sale of the properties attached in view of the provisions of sec. 168A of the Bengal Tenancy Act. On 25th January, 1941, the Subordinate Judge overruled these objections. On 3rd February, 1941, the judgment-debtors Nos. 0 to 9 filed an appeal (F.M.A No. 52 of 1941) in this Court against the order of the Subordinate Judge dated 25th of January, 1941. This appeal was allowed by this Court on the 27th of February, 1942. The decree-holder has obtained leave of this Court to appeal to His Majesty in Council against the order of this Court allowing the appeal. On the 29th of April, 1942, the decree-holder filed another application for execution of the decree in rent suit No. 2 of 1939 against judgment-debtors Nos. 6 to 9 and 25 to 28. This execution case was registered as execution case No. 4 of 1942. In this execution case the decree-holder prayed for the realisation of the decretal amount by the appointment of a receiver, under sec. 51 of the Civil Procedure Code, of certain properties of judgment-debtors Nos. 6 to 9 and 25 to 28. These properties do not include the tenure in arrears. On the 30th of May, 1942, the judgment-debtors Nos. 6 to 9 and 25 to 28 filed objections to this execution petition. The objection of the judgment-debtors, so far as it is relevant for purposes of the present appeal, is that in view of the provisions of sec. 168A of the Bengal Tenancy Act the executing Court has no power under sec. 51 of the Civil Procedure Code to appoint a receiver of the properties. This objection of the judgment-debtors has been allowed. Hence this appeal by the decree-holders.

    2. Sec. 51 of the Civil Procedure Code runs as follows:—

    “Subject to such conditions and limitations as maybe prescribed, the Court may, on the application of the decree-holder, order execution of the decree—

    (a) by delivery of any property specifically decreed;

    (b) by attachment and sale or by sale without attachment of any property;

    (c) by arrest and detention in prison;

    (d) by appointing a receiver; or

    (e) in such other manner as the nature of the relief granted may require.’

    3. The material provisions of sec. 168A of the Bengal Tenancy Act are:

    “1 (a) 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, or a certificate for such arrears signed under the Bengal Public Demands Recovery Act, 1913, 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:

    Provided that the provisions of this clause 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;

    (b) the purchaser at a sale referred to in clause (a) shall be libale to pay to the decree-holder or certificate-holder the deficiency, if any, between the purchase price and the amount due under the decree or certificate together with the costs incurred in bringing the tenure or holding to sale and any rent which may have become payable to the decree-holder between the date of the institution of the suit and the date of the confirmation of the sale.”

    4. In Bahadur Singh Singhee, Decree-Holder… v. Sanyasi Charan Ghosh, Judgment-Debtor….* 47 C.W.N 287 1943., Henderson, J., has held that sec. 168A of the Bengal Tenancy Act does not prohibit or affect any mode of execution other than the attachment and sale of the judgment-debtors property and does not, therefore, bar his arrest and detention. In Anil Kumar Basu v. Roy Biman Behari Mitra 48 C.W.N 344 1944., a Division Bench of this Court has held that sec. 168A of the Bengal Tenancy Act does not bar the execution of a rent decree by attachment under the provisions of Or. 21, r. 53 of the Civil Procedure Code of a decree passed in favour of the judgment-debtor. The reasons given in support of this decision are these:

    (a) Sec. 168A is an encroachment upon the rights which the landlord decree-holder had under the ordinary law and it cannot be extended beyond what is warranted by ??? actual language of the section.

    (b) In construing an Act the Court law had got to ascertain the intentions the legislature from what the latter has chosen to enact either in express words by reasonable implications.

    (c) A judicial tribunal is bound to give effect to the clear language used in a statute even though it is of opinion that consequences are not such as could have been contemplated by the legislature.

    (d) There are no words in sec. 168A which show that the only form of execution which is available to the decree-holder is to attach and sell the defaulting tenure and nothing else.

    (e) A mere attachment without sale of the property is not prohibited by sec. 168A.

    5. The contention of Mr. Gupta appearing on behalf of the Respondents is that although there are no express words in sec. 168A which prohibit any mode of execution other than the attachment and sale of the judgment-debtor's property, the reasonable implication of sec. 168A (1)(b) is that the tenant judgment-debtor is not liable beyond the defaulting tenure.

    6. Sec. 168A (1) (b) assumes that the defaulting tenure is available to the decree-holder for the satisfaction of his decree and that the defaulting tenure has been sold and purchased in execution of the decree. Where the defaulting tenure is liable to be sold in execution of the decree and is actually sold, the tenant has no further liability as the decree becomes satisfied and the question of further execution of the decree does not arise. Where, as in the present case, the defaulting tenure is not available to the decree-holder and cannot be sold in execution of the decree, sec. 168(1) (b) does not come into operation, the personal liability of the judgment-debtor under the decree continues and there is no reason why the decretal amount cannot be realised by modes of execution other than the attachment and sale of the judgment-debtor's properties.

    7. The next contention of Mr. Gupta is this: The proviso to sec. 60 of the Civil Procedure Code mentions the properties which are not liable to attachment or sale and sec. 168(1)(a) also lays down the properties which are not liable to attachment or sale. therefore the word “and” coming between attachment and sale in sec. 168A (1)(a) should be construed as “or” as in the proviso to sec. 60 of the Civil Procedure Code. A. receiver cannot be appointed of properties which are exempted from attachment or ???ale under the proviso to sec. 60 of the Code. No receiver can therefore be appointed of properties of the judgment-debtor which cannot be attached or sold under sec. 168(1)(a).

    8. In Anil Kumar's case, Mukherjea, J., said:

    “The words “attachment and sale” have been taken verbatim, from sec. 51 cl. (b) of the Civil Procedure Code and it seems to us that the latter part of the clause was not reproduced in see. 168A of the Bengal Tenancy Act probably because no question of sale of any property without attachment can possibly arise when a rent decree is being executed. We do not think that a mere attachment without sale of the property does at all come within the purview of sec. 168A of the Bengal Tenancy Act.”

    9. Mr. Gupta in support of his contention that a receiver cannot be appointed of properties which are exempted from attachment or sale under sec. 60 of the Civil Procedure Code relied on Lucus v. Harris 18 Q.B.D 127 1886.. In that case the Court of Appeal held that an order appointing a receiver of the pension of an officer of Her Majesty's Forces was bad as by sec. 141 of the Army Act, 1881, such pension was made inalienable by the voluntary act of the person entitled to it. “Right to future maintenance” cannot be attached or sold in view of the provisions of sec. 60, sub-sec. (1)(n) of the Civil Procedure Code. In Lal Rajendra Narain Singh v. Must. Sundar Bibi L.R 52 I.A 262, their Lordships of the Judicial Committee said:

    “The right of maintenance is in point of law not attachable and not saleable. They think that sec. 60 of the Civil Procedure Code sub-sec. (1) (n) precludes an application for that purpose.

    The proper remedy lies in a fit case in the appointment of a receiver for realising the rent and profits of the property paying out of the same a sufficient and adequate sum for the maintenance of the judgment-debtor and his family and applying the balance, if any, to the liquidation of the judgment-debtor's debt.”

    10. We are therefore of opinion that a receiver can be appointed of properties of the tenant judgment-debtor which are not liable to be attached or sold in execution of the rent decree.

    11. The last contention of Mr. Gupta was this:

    Sec. 168A prohibits the sale of the movable property of the tenant judgment-debtor. The decree-holder in the present case asks for the appointment of a receiver of some khamar lands of the judgment-debtor. These khamar lands yield paddy.

    12. The receiver will have to sell this paddy which is the movable property of the judgment-debtor. By getting a receiver appointed the decree-holder will therefore be entitled to do indirectly what he cannot do directly.

    Sec. 168(1)(a) prohibits the attachment and sale of movable property of the judgment-debtor in execution of a decree. It does not prohibit private sale of any movable property which does not require previous attachment.

    For the reasons given above we are of opinion that sec. 168A of the Bengal Tenancy Act does not bar the execution of a rent decree by the appointment of a receiver of the judgment-debtor's property under sec. 51(d) of the Code of Civil Procedure.

    The result therefore is that this appeal is allowed. The order of the Subordinate Judge is set aside. The Subordinate Judge is directed to proceed with the execution of the decree by the appointment of a receiver of the properties which are mentioned in the petition for execution.

    There would be no order as to costs.

    Mitter, J.:— I agree.

    Sharpe, J.:— I agree.

    P.C

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    Sudhir Krishna Ghosh And Anr. Decree-Holders, v. Satish Chandra Hui And Ors. Judgment-Debtors,
    (Aug 29, 1944)