Mitter, J.:— On the 4th July, 1940, a decree by consent for Rs. 3,400 odd was passed in favour of the Appellants and against the Respondent. The said sum represented arrears of rent in respect of a tenure governed by the Bengal Tenancy Act. On the 5th August, 1943, the decree-holders applied for execution by arrest of the judgment-debtor. At that time sec. 168A of the Bengal Tenancy Act, which was introduced by Amending Act XVIII of 1940, had come into operation. The learned Subordinate Judge held that the judgment-debtor was liable to be arrested but the learned District Judge on appeal has held otherwise.
2. The first part of sec. 51 of the Code of Civil Procedure indicates the different modes of execution available to a decree-holder.
3. In the case of a decree for money he may apply for attachment and sale of the judgment-debtor's property, apply for his arrest or apply for a receiver of his property. Sec. 168A of the Bengal Tenancy Act, however, puts a limitation. The effect of the Special Bench decision in Sudhir Krishna Ghosh v. Satish Chandra Hui(1) is that the first sub-section to sec. 168A has not confined the landlord absolutely to the tenure or holding in default for realising the decree for rent which he had obtained but has only prevented him from attaching and selling movable or immovable property of the tenant judgment-debtor other than the tenure or holding in default in those cases where the proviso is inapplicable, with the result that other modes of execution are available to him. In Anil Kumar Basu v. Roy Biman Behary Mitter(2) a Division Bench of this Court has held that the word “attachment and sale” used in sec. 168A (1) ought not to be read as “attachment or sale,” with the result that that sub-section prohibits an attachment if and only so far as it is a necessary step to the sale of the property. Those cases proceed upon the principle that inasmuch as sec. 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. We respectfully agree with the canon of interpretation thus laid down. In that view a landlord decree-holder is not debarred from invoking the modes of execution provided for in cls. (c) and (d), of sec. 51, Civil Procedure Code, for the purpose of realising his decree for rent. His right to arrest his judgment-debtor must, however, be regulated or limited by what is contained in the proviso to the said section, namely, sec. 51. Whether he would be able to induce the Court to appoint a receiver over other properties of the tenant judgment-debtor when he has not proceeded against the tenure or holding in default which is still available for the satisfaction of his decree for rent, is a question on which we do not express any opinion.
4. In the case before us it is not the decree-holder's case that the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the court or that he has after the institution of the rent suit dishonestly transferred, concealed or removed any part of his property or has committed any other act of bad faith in relation to his property. He must therefore satisfy the Court that the judgment-debtor has had since the date of the decree sought to be executed by arrest or has now the means to satisfy the said decree or to pay a substantial part thereof. To that end he led evidence, which we accept as reliable, that the judgment-debtor has a very big and substantial residential house in Bhowanipore, is the owner of zemindaries and has a motor car. We take it that the value of those properties would be many times the decretal amount. It is, however, admitted that the tenure in default is not of sufficient value to afford means to the judgment-debtor to pay a substantial amount of the decree. The question is can the value of those properties be taken into account in calculating his means in view of the explanation to sec. 51 of the Civil Procedure Code read in the light of sec. 168A (1) of the Bengal Tenancy Act? In Bahadur Singh Singhee v. Sanyasi Churn Ghosh(3) which was heard ex parte, the said explanation was not adverted to. Moreover, that decision being that of a single Judge is not binding on us.
5. The phrase “the decree” occurring in the said explanation obviously means the self-same decree which is sought to be executed by the arrest of the judgment-debtor. The question therefore narrows down to this, whether the zemindaries, the house or the motor car could have been attached in execution of this decree for rent, that is to say, attached as a necessary preliminary step for obtaining payment of the decretal amount in the course of a process other Shan proceedings for sale. Though in certain circumstances a receiver could have been appointed over those three items of property, or some of them, which the Respondent has, in execution of the Appellant's decree for rent, an attachment of those properties would not be a normal or a necessary step for the said appointment. As the case before us does not come within the proviso to sec. 168A (1) of the Bengal Tenancy Act none of those three items could be attached with a view to sell them. In view of the provisions of sec. 168A (1) the value of those properties of the Respondent cannot be taken for calculating his means to pay the decretal amount or a substantial portion thereof. That being the effect we hold that the Respondent cannot be arrested, though in the popular and the ordinary sense he has ample means to pay the decretal amount. The fiction created by the explanation to sec. 51 of the Civil Procedure Code taken in conjunction with sec. 168A (1) of the Bengal Tenancy Act stands in the Appellants' path.
6. The result is that this appeal is dismissed. The parties do bear their respective costs throughout.
Clough, J.:— I agree.