Satish Chandra Lahiri v. Raja Protiva Nath Roy

The Judgment of the Court was as follows:—

The judgment-debtor Satish Chandra Lahiri is the Appellant in this case. It appears that on the 7th of November, 1932, his landlord, Raja Protiva Nath Roy, obtained a decree against him. In execution of this decree the decree-holder sold the Appellant's holding on the 21st June, 1938. On the 29th of June, 1936, the decree-holder auction-purchaser obtained symbolical delivery of possession of the holding. Thereafter on the 13th of July, 1936, the judgment-debtor applied under sec. 174(3) of the Bengal Tenancy Act to have the sale set aside. On the 10th of October, 1336, the matter regarding the judgment-debtor's application under sec. 174(3) of the Bengal Tenancy Act was compromised between the parties and it was arranged that the sale should be set aside on payment by the judgment-debtor to the decree-holder of the sum of Rs. 92 in two instalments. These instalments were admittedly duly paid. On the 17th of November, 1937, the judgment-debtor tiled an application in the first Court under the provisions of sec. 144 read with sec. 151 of the Code of Civil Procedure for the recovery of compensation from the decree-holder auction-purchaser on the ground that, in spite of the compromise which had been effected on the 10th of October, 1936, the possession of the judgment-debtor's holding had not been made over to him and that the landlord had realised rent from the judgment-debtor's tenants even after the date on which the compromise was effected. This application was allowed by the first Court but, on appeal by the decree-holder auction-purchaser, the decision of the first Court was set aside on a finding to the effect that after the date of the compromise the landlord had never exercised any act of possession in respect of the judgment-debtor's holding.

A preliminary objection has been raised by the learned Advocate for the Respondent to the effect that no appeal lies. In the first place, he relies upon sec. 102 of the Code of Civil Procedure. I am of opinion, however, that this section can have no application in the present case as the proceeding in connection with which this appeal has been filed was not a suit within the meaning of sec. 102 of the Code of Civil Procedure but was merely a miscellaneous proceeding to enable the judgment-debtor to obtain compensation from the decree-holder by applying the principles of sec. 144 of the Code. The learned Advocate then argues that, in any event, an appeal is barred under the provisions of sec. 153 of the Bengal Tenancy Act. There seems to be no doubt that the amount claimed in the rent suit did not exceed one hundred rupees and admittedly execution proceedings must be treated as a continuation of the suit. It, therefore, follows that, if the judgment-debtor's application can be regarded as a proceeding in execution of the decree, an appeal to this Court would be barred under sec. 153 of the Bengal Tenancy Act. I am, however, of opinion that having regard to the nature of this application it cannot be said to be an application in an execution proceeding. As already explained it was an application under sec. 114 read with sec. 151 of the Code of Civil Procedure. There has been some difference of judicial opinion as to whether or not an application under sec. 144 is an application in execution. With regard to this matter it was pointed out by Sir George Rankin, C.J, in the case of Saroj Bhusan Ghosh v. Debendra Nath Ghosh , that most of the Calcutta cases are to the effect that an application under sec. 144 cannot be regarded as an application in execution. His Lordship then observed:

“I am not prepared to say that I disagree with those decisions. There are a good many matters to be canvassed; but it does seem to me that, baring regard to the fact that execution proceedings are not within sec. 141, having regard to the fact that large claims for damages may have to be entertained under sec. 144 and that sec. 144 has not been put in that part of the Code which deals with execution but in the chapter of the Cede which deals with miscellaneous matters, it is by no means clear that the contention that an application for restitution is an application in execution ought to be accepted.”

The question was further considered by this Court in the case of Tarak Chandra Ray v. Panchwnan Banerjee . In that case Mr. Justice Mukherjee in his judgment cited the decision of Rankin, C.J, in Saroj Bhusan Ghosh's case and held that a proceeding for restitution is not an execution proceeding and consequently such an application does not corns within sec. 47 of the Code of Civil Procedure. I entirely agree with the views expressed by the learned Judges who decided the above-mentioned cases. Having regard to the very nature of an application under sec. 144 of the Code of Civil Procedure, I do not think that in any sense it can be regarded as an application in an execution proceeding. On the other hand, it is ordinarily an application made by a person in whose favour a decree has been reversed or varied after a final adjudication in the matter in dispute has been obtained and after the conclusion of any execution proceedings which may have been taken, for the purpose of nullifying any adverse effects which may have resulted to him by reason of the fact that the decree in question has already, been executed against him. In this view of the case, I do not think it can be said that an appeal is barred under the provisions of sec. 158 of the Bengal Tenancy Act.

As regards the merits of the appeal itself, the main contention put forward by the learned Advocate for the Appellant is that the symbolical delivery of possession which took place on the 29th of June, 1936, amounted to delivery of actual possession as between the decree-holder and the, judgment-debtor and that this being the case, his client was prevented from realising rents from his tenants after the delivery of possession had been effected. He, therefore, argues that in deciding this matter the learned Subordinate Judge proceeded upon an erroneous view of the law. The judgment of the lower Appellate Court contains a clear finding to the effect that the decree-holder never exercised any act of possession at all in respect of the property which he had purchased in execution of his decree. It is admitted as regards the judgment-debtor's application to set aside the sale which he filed on the 13th of July, 1936, that this matter was compromised on the 10th of October, 1936. In my opinion the effect of this compromise was clearly entirely to nullify the effect of any symbolical delivery of possession which may have taken place on the 29th of June, 1936. By agreeing to this compromise the decree-holder restored to the judgment-debtor any rights which he may have acquired by virtue of the symbolical possession which he obtained on the 29th of June, 1936 and it seems to be quite clear that this must have been his intention because, as appears from the findings in the judgment of the lower Appellate Court, after the compromise was effected he never exercised any act of possession in respect of the judgment-debtor's holding. This being the case, there was, in my view, nothing to prevent the judgment-debtor after the 10th of October, 1936, from instituting appropriate proceedings to recover rent from his tenants and, if he failed to do so, such failure must be regarded as due to his own negligence.

Having regard to the considerations mentioned above, I am of opinion that the decision of the lower Appellate Court is correct. It is, therefore affirmed and this appeal 13 dismissed with costs. The hearing-fee is assessed at two gold mohurs.

P.C