- (1.) The Respondents obtained on September 21, 1950, a decree for arrears of rent against the Appellants and started the present execution case on January 16, 1954. The mode in which the assistance of the court was required was stated, in para. 11 of the application, to be the sale of movable properties belonging to the judgment-debtors and if that was not sufficient then by attachment and sale of certain immovable properties details of which were given in the schedule tot the application. The judgment-debtors objected to the execution on the basis of Section 168A of the Bengal Tenancy Act. They also relied for their objection on a certain stipulation in the document creating the darpatni lease in respect of which the lease had been obtained. The executing court upheld both these objections and allowed the miscellaneous case and passed the following order: The prayer of the decree-holders for execution of decree against the movables of the judgment-debtors is disallowed. They may amend the execution petition and make suitable prayer for realisation of the decretal dues.
(2.) Instead of amending the application in accordance with the permission granted by the executing court, the decree-holders appealed. The court of appeal agreed with the executing court that the provisions of Section 168A of the Bengal Tenancy Act were a bar to the execution of the decree by proceeding against any property other than the holding in arrears. He thought, however, that as the darpdtni tenure was non-existent, it was reasonable to allow the decree-holder to fall back on the movables. He held further that the stipulation in the kabuliyat that the landlord would recover his dues from the tenure in the first instance and could only fall back upon the movables and other immovables if the tenure was not sufficient was of no assistance to the judgment-debtors as the tenure did not exist at all. Accordingly he allowed the appeal and dismissed the application under Section 47 of the Code of Civil Procedure and ordered that the decree-holder would be allowed to execute the decree by attachment of movables as prayed for by him. It is against this decision of the appellate court that this appeal has been preferred by the judgment-debtors.
(3.) The real question undoubtedly is whether Section 168A of the Bengal Tenancy Act is a bar to execution of the decree by attachment of the movables. If that bar exists, I find it difficult to understand how the Court can give relief on the ground that the darpatni tenure has ceased to exist. It is well to remember that the function of the Court is to interpret the law while the function of the legislature is to legislate. If on a correct interpretation of the statutes and consideration of other law the Court finds that the decree-holder cannot execute by attachment of movables, the Court has no power in law to give him relief as the learned appellate court has done on the ground that "as the darpatni tenure is non-existent, it is reasonable to "allow the decree-holder to fall back on the movables". To give such relief though the law does not allow him to do so, would be usurping the function of the legislature.;