Naresh Chandra Ray v. Dhirendra Nath Dey — 1950 DIGILAW 48 (CAL)

Judgement GUHA, J. :- This appeal by the defendants arises out of a suit for recovery of arrears of rent in respect of a dar-patni jama. By a sub-sequent amendment of the plaint, the plaintiff prayed for a declaration of a charge upon the defendants one-sixth share in the superior patni in terms of a Jaminnama for securing the payment of the dar-patni rent. 2. The facts which are not in dispute are briefly as follows : 3. The father of the defendants took settlement of one-sixth share of the patni of the plaintiff in dar patni right upon a potto, executed in 1326 B.S. In the said patni the defendants father had also one-third share and on the same date as the date of the dar-patni potto, he executed a jaminnama, by which he purported to create a charge upon his one-sixth share in the patni for rent of the dar-patni in dispute. By his annulment of the plaint, the plaintiff wanted to make one-sixth share of the defendants in the patni liable for his dues in respect of the present suit. 4. The defence inter alia was that the provisions of S. 168-A, Bengal Tenancy Act, stood in the way of the plaintiff in enforcing the contract entered into between the parties upon the jaminnama. 5. The trial Court decreed the suit in part upon the finding that the plaintiff would get a decree for the amount claimed without any charge upon the patni interest of the defendants for the realisation of the dues and that the plaintiff would be entitled to execute the decree against the defaulting tenure only. Against this decision the plaintiff preferred an appeal before the District Judge of Howrah. This appeal was successful. The decision of the trial Court was modified and the plaintiffs suit was decreed in full. In the opinion of the Court of appeal below, S. 168-A, Bengal Tenancy Act, was not a bar to the enforcement of the charge provided for in the jaminnama. Against this decision the de fondants have preferred this appeal. 6. It has been contended before us by Mr. A.D. Mukherji on behalf of the appellants that upon a proper construction of the jaminnama it did not create a charge and we have been taken in this connection through the various provisions of the jaminnama. Against this decision the de fondants have preferred this appeal. 6. It has been contended before us by Mr. A.D. Mukherji on behalf of the appellants that upon a proper construction of the jaminnama it did not create a charge and we have been taken in this connection through the various provisions of the jaminnama. As regards this contention, it may be observed at the outset that in the Courts below it was conceded on behalf of the defendants that the jaminnama did create a charge. Be that as it may, upon considering the terms of the document carefully we have reached the conclusion that a charge was created by the jaminnama. The terms of the document come within the clear words of S. 100, T.P. Act. It is clear from the recitals of the document that a certain share of the defendants patni interest was made security for the payment of money to the plaintiff in respect of the dar-patni rent. The contract accordingly amount, ad to a charge, as has been found by the Courts below. As the contract amounted to a charge, no attachment would be necessary in execution of the decree, as pointed out by the Court of appeal below. No attachment of the defendants patni interest will be necessary in execution of a decree with declaration of a charge, if any such decree is passed in favour of the plaintiff. 7. The nest point for consideration is whether in these circumstances S. 168A, Bengal Tenancy Act, stands in the way of the plaintiff. It is contended on behalf of the appellants that S. 168A stands as a bar in way of the plaintiff in enforcing the contract upon the jaminnama, Section 168-A(1)(A) lays down that notwithstanding anything contained in any contract 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, shall not be executed by the attachment and sale of any property other than the entire tenure or holding to which the decree related. In the present case, as has been observed before, no attachment of the defendants patni interest will be necessary in execution of the decree obtained by the plaintiff with declaration of a charge. Now the question is whether in these circumstances S. 168-A(1)(A) can defeat the right of the plaintiff. In the present case, as has been observed before, no attachment of the defendants patni interest will be necessary in execution of the decree obtained by the plaintiff with declaration of a charge. Now the question is whether in these circumstances S. 168-A(1)(A) can defeat the right of the plaintiff. In our opinion the answer should be in the negative. As painted out in the case of Praful Chandra v. Naresh Chandra, 50 CWN 655 : (AIR (33) 1946 Cal 498) as S. 16B-A 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. In S. 168-A(1)(A) the words used are "attachment an sale". In the present case there will be no attachment and on a plain reading of the section, therefore, it would appear that it will not stand in the way of the plaintiff. Mr. A.D. Mukherjee on behalf of the appellants has, however, drawn out attention to certain observations of Mukherjea, J. in the case of Anil Kumar v. Roy Biman Bahari, 48 CWN 344 : (AIR (31) 1944 Cal 240). He has laid particular stress upon the following passage in the judgment of Mukherjea, J., : "The intention of the Legislature was obviously to prevent the sale of any property belonging to the judgment-debtor other than the tenure is execution of a rent decree. An attachment cornea within the prohibition of the section only so far as it is a necessary step to the sale of the property." Relying upon this passage Mr. Mukerjea contends that the primary intention of the Legislature in enacting S. 168-A being to prevent the sale of any property of the judgment-debtor other than the tenure, in the present case as well, which is one of sale without attachment of the defendants patni interest, S. 163-A will be applicable. This contention appears to us to be without much substance. In the passage in question upon which such strong reliance has been placed by Mr. A.D. Mukherjee, it appears that the word "sale " was used in a somewhat broad sense, as certain other passages of the judgment will show. This contention appears to us to be without much substance. In the passage in question upon which such strong reliance has been placed by Mr. A.D. Mukherjee, it appears that the word "sale " was used in a somewhat broad sense, as certain other passages of the judgment will show. It is significant that in S. 168-A the relevant words are "attachment and sale" and not " attachment or sale." As pointed out in the case in Anil Kumar v. Ray Biman Behari, 48 CWN 344 : (AIR (31) 1944 Cal 240) referred to above, the words have been taken verbatim from S. 51(B), Civil P.C., the latter part of the clause, namely, "by sale without attachment of any property" being not reproduced in S. 168-A, Bengal Tenancy Act, The omission of those words "by sale without attachment of any property" is significant and it seemed to imply that it is only that mode of execution, namely, by attachment and sale, which is affected by S. 168-A, Bengal Tenancy Act. Section 168-A has to be construed strictly and upon such strict construction the present case does not, in our opinion, come within the mischief of that section. That being so, S. 168-A cannot stand as a bar in the way of the plaintiff in enforcing the contract upon the jaminnama. 8. In the result, the decision of the Court of appeal below is upheld and this appeal is dismissed with costs. 9. The decree, however, will be drawn up by the Court below according to Form No. 5-A of Appendix D, Civil P.C., so far as is practicable. LAHIRI, J. :- I agree. Appeal dismissed.