NIHAR GANGULI Vs. RAI ANATH NATH BASU

JUDGEMENT

(1.) These two appeals arise out of two execution cases based on two decrees obtained by the appellants who are Trustees of the estate of Maharaja Sir Jotindra Mohan Tagore against the respondents in the following circumstances:

(2.) The two decrees were passed in Bent Suit No. 10 of 1947 and Rent Suit No. 1 of 1950, respectively, in respect of the same tenure which was held by the respondents under the proprietor represented by the appellants. The tenure in question was created on 5-1-1897, by exchange of Patta & Kabuliat between Maharaja Sir Jotindra Mohan Tagore as landlord and Pashupati Bose as in the name of one Bhava Nath Sen. A sum of Rs. 15,676/1/- including revenue was the rental fixed under the document creating the tenure, of which a sum of Rs. 3000/- approximately was for revenue and cess leaving a sum of Rs. 12,000/- and odd as the net rental payable by Pashupati Nath Bose to the landlord. It appears that the rent was regularly paid up to the year 1939. Prom that year on, however, the tenure fell into arrears and the proprietor had to institute suits from time to time for realisation of the arrears of rent in respect of the tenure. Accordingly, when Rent Suit No. 10 of 1947 was instituted for Falgoon kist of 1353 Fs. to Falgoon kist of 1354 Fs., there were already rent decrees outstanding. Rent Suit No. 10 of 1947 was decreed for a sum of Rs. 184077- and odd on 8-5-1948, and Rent Suit No. 1 of 1950 was decreed for a sum of Rs. 55,506/4/- on 31-3-1952. The decree of Rent Suit No. 10 of 1947 was executed in Rent Execution Case No. 37 of 1950 and the tenure was attached on 11-4-1950. On 6-11-1951, the State of Bihar issued a notice under Section 3 , Bihar Land Reforms Act and the tenure in question vested in the State of Bihar. Execution Case No. 37 of 1950 was accordingly struck off on 23-8-1952. The decree-holders applied on 12-12-1952, for transfer of the first decree to the original side of the Calcutta High Court from the Court of the Subordinate Judge, Gaya, which passed the decree. In the meantime, on 8-12-1952, as a result of the notification under the Land Reforms Act, the proprietary interest also vested in the State of Bihar. The judgment-debtor objected to the application for transfer of the decree to the Calcutta High Court. On .20-12-1952, objection of the judgment-debtor to the transfer was dismissed. The judgment-debtor filed Misc. Appeal No. 12 of 1953 in this Court on 21-1-1953, and on 23-1-1953, the appeal was dismissed by a Division Bench of this Court under Order 41 Rule 11, Civil P. C. On 29-1-1953, the Court of the Subordinate Judge, Gaya, transmitted the decree in Rent Suit No. 10 of 1947. On 2-2-1953, the decree-holders filed a claim case before the Claims Officer under the Land Reforms Act which was numbered as Claim Case No. 8 of 1953 and was re-numbered subsequently as Claim Case No. 18 of 1954. On 20-2-1953, the decree in Suit No. 1 of 1950 was sought to be transferred by the decree-holders for execution to the Calcutta High Court. On 23-4-1953, the learned Subordinate Judge passed final order on the application for transfer of this decree as well. On transfer the two decrees were sought to be executed on the original side of the Calcutta High Court and execution was taken out on 23-7-1953. Execution Case No. 20 of 1953 arose out of the decree in Rent Suit No. 1 of 1950 and execution Case No. 21 of 1953 arose out of the decree in Rent Suit No. 10 of 1947. On 10-7-1953, notice was issued under Order 21, Rule 22, Civil P. C., in the Calcutta High Court by the Master in Chambers fixing 4-8-1953, as the date to show cause why the decree should not be executed. On the date fixed the judgment-debtors did not appear and, accordingly, attachment was effected of a house of the judgment-debtor-appellant in Calcutta on 7-8-1953. On 28-8-1953, objection was filed by judgment-debtor No. 1, out of six judgment-debtors. The remaining judgment-debtors, however, did not object. The records were called for by the Calcutta High. Court from the Gaya Court on 7-5-1954, on objection having been filed by the judgment-debtor No. 1, and on 23-8-1954, the objection of the judgment-debtor No. 1 was dismissed by P.B. Mukherji J.

(3.) It appears that learned Counsel for the judgment-debtor prayed in that case that he would agitate the matter in dispute, between the parties in the execution case by way of a regular suit, and, accordingly, Title Suit No. 2822 of 1954 was instituted in respect of Execution Case No. 20 of 1953 which was based on the decree in Rent Suit No. 1 of 1950; and Title Suit No. 2823 of 1954 was instituted in respect of Execution Case No. 21 of 1953 relating to the decree in Rent Suit No. 10 of 1947. The plaintiff prayed for an injunction in these two suits restraining the decree-holders from proceeding with the execution of the decrees. The prayer for injunction, however, was refused by the Court. Further, the judgment-debtor filed an application on 13-11-1954 and 17-11-1954 in claim case No. 18 of 1954 to the effect that the Claims Officer should direct withdrawal of the decrees from the Calcutta High Court. The Claims Officer, how ever, ordered the applicant to file his application in Rent Suit Nos. 1 of 1950 and 10 of 1947. On 18-11-1954, the judgment-debtor accordingly filed two applications in the two suits aforesaid praying for withdrawal of the two decrees from the Calcutta High Court. On 19-11-1954, the decree-holders withdrew the claim in respect of these two decrees from the claim case. On 20-11-1954, however, the decree-holders made a further prayer to the Claims Officer for time to re-consider the matter and on 23-11-1954, Mr. S.P. Singh, the learned Subordinate Judge, passed an order that unless the claim was withdrawn, the decrees sent to the Calcutta High Court would have to be recalled. Mr. Ganga Charan Mukherji, for the appellants contends that this order was passed without giving notice to the decree-holders. On 26-11-1954 the decree-holders intimated to the Court in the claim case. The learned Subordinate Judge accordingly passed an order on that date for withdrawal of the decrees. On 27-11-1954, the decree-holders filed an application explaining the circumstances in which they found it difficult to withdraw the claim case in respect of these two decrees. On 29-11-1954, the learned Subordinate Judge directed the decree-holders to move the High Court for stay order in respect of the order of recall & on 2-12-1954, the present appeals were filed in this Court together with a petition for stay of operation of the order of the learned Subordinate Judge recalling the decrees from the Calcutta High Court. The application for stay was, however, rejected on 3-12-1954, by this Court. On 8-12-1954, the decree-holders prayed to the Court that the recall order might not be transmitted as the decree-holders were prepared to withdraw the claim case in respect of the two decrees. The petition was, however, rejected on 9-12-1954. On 6-1-1955, the Registrar of the Calcutta High Court sent a reply to the learned Subordinate Judge refusing to transmit the decrees back to the Gaya Court on the grond that the Calcutta High Court was a Court of record and could not transmit the decrees which were sent to it for execution. On 24-1-1955, the decree-holders filed a petition before the Claims Officer withdrawing the claims in respect of the two decrees from the claim cases, and on that very day another letter was sent by the learned Subordinate Judge to the Calcutta High Court in proper form, being of the opinion that the only objection of the Calcutta High Court to the transmission was on account of a defect of form. On 25-1-1955, an order was passed by the Gaya Court that the Judgment-debtor would have to make an application himself in the Calcutta High Court as that Court would not transmit a decree in compliance with a requisition by the learned Subordinate Judge, who was the transferor Court. On 30-3-1955, however, an order was passed by Mr. P.B. Mukherji j., again, to the effect that final order would be passed in regard to the matter of transmitting back the decrees on the decision of Miscellaneous Appeal No. 406 of 1954 under consideration before us, and further execution in the Calcutta High Court was stayed on the application of the judgment-debtor. It appears that the judgment-debtor being aggrieved by the order of P.B. Mukherji, J., preferred Letters Patent Appeals Nos. 112 and 113 of 1955 ill the Calcutta High Court. It is unnecessary to refer to other matters in connection with the execution case in Calcutta, but it may only be stated that on 11-6-1955, the claim case preferred by the decree-holder before the Claims Officer, Gaya, stood dismissed for non-prosecution.