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1944 DIGILAW 182 (CAL)

Nirmal Chandra Roy v. Jogindra Nath Roy Bahadur

1944-11-29

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JUDGMENT Henderson, J. - These appeals are by the judgment-debtor. The question involved is whether the decree should be executed under the provisions of Chap. XIV of the Bengal Tenancy Act or the provisions of the Code of Civil Procedure. On an application by the co-sharers of the Appellant under sec. 88 of the Bengal Tenancy Act the rent was distributed, although the lands were not partitioned. The objection taken by the Appellant is that the effect of such distribution is to make the decree's money decrees with the result that they can only be executed as such. 2. As a result of the distribution made, the Appellant has become the sole tenant of the decree-holder. It would be impossible to implead the representatives of the other two-thirds share of the original tenancy. It would be rather strange if the law made it impossible for the landlord in such circumstances to obtain a rent decree. 3. Two arguments were advanced in support or the appeals--(1) that there cannot be a tenure comprising an undivided interest in the land and (2) that in execution proceedings under Chapter XIV an undivided share cannot be brought to sale. 4. No authority has been cited in support of the former proposition. There is nothing in the definition of a tenure in sec. 3 (18) or in the provisions of sec. 5 (1) of the Bengal Tenancy Act to support it. Indeed, as this is a tenure, there is not even any inconvenience resulting from the order made under sec. 88. The considerations which led the Court to hold that an undivided share could not be comprised in a "holding," as originally defined, have no application to a tenure. 5. The second argument falls with the first. Under Chap. XIV the decree-holder may sell the tenure. The other original two-thirds share no longer forms part of it. As soon as it is held that the interest of the judgment-debtor is a tenure within the meaning of the Act, there is nothing which can prevent the decree-holder from bringing it to sale under Chap. XIV. The appeals are dismissed with costs, hearing-fee, one gold mohur in each case.