CHINTAMAN RAMJI KIRAD Vs. MAHADEO GANESH SOHANI

JUDGEMENT

(1.) THIS appeal raises an intriguing question. It arises out of execution proceedings and has been filed by the judgment-debtor Chintaman. Chintaman is the lambardar of two villages in which the only other cosharer is the decree-holder-respondent Mahadeo. Chintaman in his capacity as lambardar sued certain occupancy tenants of these villages for arrears of rent and obtained two decrees against them. Mahadeo who has obtained a simple money decree against Chintaman has applied to attach these decrees and the question is whether he can do so. The objection taken by Chintaman is that he cannot do so for several reasons. In the first place it is argued that Chintaman in his capacity as lambardar has elected to pursue his remedy under Section 24, C.P. Tenancy Act. This entails ejectment of the tenants and Chintaman argues that he is the only person entitled to pursue this remedy because no one other than the lambardar can apply to have a tenant ejected. Therefore he says the decree cannot be attached. We do not think there is anything in this. A decree for arrears of rent against a tenant whose tenure is governed by the C.P. Tenancy Act is a simple money decree and in itself does not differ from any other decree of that character. There is nothing special or particular to it qua decree. It can therefore, so far as the Civil Procedure Code Is concerned, be executed in the same way as any other money decree. The only restrictions upon execution are those contained in the C.P. Tenancy Act and these restrictions being exceptions to the general law must be interpreted strictly in accordance with the terms of the Act which imposes them. We have therefore to examine and interpret these restrictive conditions. Section 12(2) states that no decree or order shall be passed for the sale or foreclosure of any right of any occupancy tenant in his holding, nor shall such right be attached or sold in execution of any decree or order....

(2.) THE decree which Mahadeo seeks to attach does not direct the sale or foreclosure of any right in Chintaman's occupancy holding. It merely directs payment of a sum of money. It does not therefore fall within the first part of the prohibition contained in those clauses. Nor is the application for attachment directed against the holding or any right in it. It asks for attachment of a simple money decree and nothing else. That decree can be executed in a variety of ways which have no relation whatever to this holding or to any right in it. There is therefore no prohibition against the attachment of a decree of this kind in Section 12(2). We proceed now to the next step and examine the different ways in which this decree can be executed; and first of all we will consider the position before attachment. As we have said, the Code of Civil Procedure raises no difficulties, and so all we need do is to examine the provisions of the C.P. Tenancy Act. Section 12(2) we have already seen. Chintaman could not have asked for either the attachment or the sale of the holding or of any right in it. But the Act having taken away this remedy provides another in its place. Section 23 states that: A decree for an arrear due in respect of the holding of an occupancy tenant may be executed by his ejectment, and on such ejectment all arrears in respect of such holding shall be deemed to be satisfied.

(3.) THE only limitation on this pertinent to the present case is the one contained in Order 21, Rule 60, which enacts that when the property attached is in the possession of the judgment-debtor but at the date of the attachment it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person, or partly on his-own account and partly on account of some other person, the Court shall make an order releasing the property, wholly or to such extent as it thinks fit, from attachment.