Decided on August 31,1960



- (1.) THIS is the decree-holder's appeal against the order of the learned Additional District Judge, Third Court, Alipore, dismissing, in appeal, his execution case, after giving effect to the judgment-debtors' objection under section 47 of the Code of Civil Procedure to the effect that the present execution was barred under section 168a of the Bengal Tenancy Act, and/or section 8 of the West Bengal Estates Acquisition Act, 1953. The appeal arises under the following circumstances.
(2.) UNDER the decree-holder appellant, the respondent judgment-debtors held a tenure. In respect of this tenure, rents fell into arrears, and, for recovering the same, the present appellant, as landlord, instituted Rent Suit No. 14 of 1953 in the Fifth Court of the Subordinate Judge at Alipore. That suit was decreed on February 23, 1954, and the said decree was, first, put into execution in Rent Execution case No. 6 of 1954 of the same Court, in which execution case, the defaulting tenure was advertised for sale. The judgment-debtors, however, were able to put off the sale by making payments from time to time to the tune of Rs. 2000/-, which went towards part satisfaction of the decree, and as, eventually, before the sale could take place, the West Bengal Estates Acquisition Act of 1953 had come into force, no sale could be held, in view of the mandatory provision (Vide sec. 5b) of the said statute. The execution case itself was, ultimately, dismissed for default on July 11, 1955. Thereafter, on November 21, 1955, the present execution case, which was, eventually, registered as Rent Execution Case No. 4 of 1955, was started by the decree-holder for realising his aforesaid decretal dues by attachment and sale of certain moveables, belonging to the judgment-debtors. To this execution the judgment-debtors objected by filing an application under section 47 of the Code of Civil Procedure, contending, inter alia, that, in view of section 168a of the Bengal Tenancy Act, the present execution against their moveables was not maintainable,
(3.) THERE were also certain other objections, taken by the judgment-debtors, but, for our present purpose, those objections are not material, as, the only point, now pressed, and which, in effect, found favour with the learned Additional District Judge,- relates to the question of maintainability of the decree-holder's application for execution, in view of the alleged bar under section 168a of the Bengal Tenancy Act and/or section 8 of the West Bengal Estates Acquisition Act, 1953. This latter objection was urged only before the lower Appellate Court and there it succeeded with the result that the decree-holder's application for execution was dismissed by the learned Additional 'district Judge.;

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