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Appeal from Appellate Order No. 54 of 1961, decided on 26th May 1964.

S. 69‑Dismissal of suit or execution petition on objection raised under S. 69‑Decision will not operate as res judicata for all time to come‑Fresh suit or execution of decree, after change in circumstances, maintainable in civil Court.

Any decision, given on objection under section 69 of the East Bengal State Acquisition and Tenancy Act, 1950, on the question of maintainability of the suit or a petition for execution of the decree or order will not operate as res judicata for all time to come. The Act only gives a breathing time to the judgment‑debtor to make arrangement for payment of the debt and nothing more. If all the provisions of the Act be taken into consideration they indicate that the civil Court may entertain a suit or execute any decree or order under changed circumstances. Take for instance, when the rent receiving interest is acquired, the rent receiver may apply for protection under section 69 of the Act. But his protection will continue in certain circumstances up to the time when the compensations in respect of the rent receiving interest have been paid or deposited under section 58. His protection may cease when the compensation rolls in respect of the interests of a rent receiver have been finally published and the rent receiver has not applied for scaling down his debts in respect of his estate within 3 months from the date of the publication of the compensation roll under section 42 of the Act.

United Bank of India Ltd. v. Sri Gokul Chandra Choudhry and others 15 D L R 432; Mohan Bashi Saha v. United Bank of India Ltd. and others P L D 1964 Dacca 316 and Mafazal Ahmed v. Haji Abdus Sattar 16 D L R 92 ref.

A. M. Choudhry for Appellants.

Ranadhir Sen for Respondent.

The appellant by mortgaging certain properties part of which was khas and part of which was tenanted, obtained a certain sum of money from the Sankar Bank Ltd., Chowmohani (respondent) on 8th of December 1945. The debtor defaulted in payment of the mortgage debt. Consequently, the Bank obtained a decree in Mortgage Suit No. 32 of 1953, on 7th of December 1955, and put the decree into execution (Title Execution Case No. 33 of 1957). The appellant namely, the judgment‑debtor, filed an objection under section 47 of the Code of Civil Procedure as well as under section 69 of E. B. S. A. & T. Act contending inter alia that as the decree in question was passed before 1948, the same was not executable against him in view of the provisions of section 69 of the East Bengal State Acquisition and Tenancy Act, he being a rent receiver and as compensation has not been paid by the Government after the acquisition of the rent receiving interest. At this Miscellaneous Case No. 52 of 1959, was started. After hearing the parties, the objection of the judgment‑debtor was accepted and the Title Execution Case No. 33 of 1957, was struck off on the 18th of April 1959, on the finding that the execution case was not maintainable in view of the provisions of section 69 of the. East Bengal State Acquisition Act.

Their Lordships of the Supreme Court in the case of the United Industrial Bank Ltd. v. Mohan Bashi Saha and another held that a mortgage secured wholly upon properties which was not liable to acquisition under the State Acquisition Act was not one which was liable for scaling down under section 70 of the State Acquisition Act and consequently the bar of section 69 of the Act was not applicable to it. The judgment in that case was delivered on 28th May 1959. Thereafter the decree‑holder again put the decree into execution whereupon the judgment -debtor took objection as to the maintainability of the execution case on the ground that provision of section 69 of the East Bengal State Acquisition and Tenancy Act was a bar to the maintainability of the execution proceeding and that in view of the previous finding by the Executing Court in Miscellaneous Case No. 52 of 1959, arising out of Title Execution Case No. 33 of 1957; the execution case in question was not maintainable and the present proceeding was barred by principle of res judicata.

The executing Court in view of the decision of the Supreme Court in the case mentioned above was of opinion that though section 69 of the Act was not applicable to the present execution case, being proceeded with against the khas land of the rent receivers but in view of the previous decision by the executing Court in Miscellaneous Case No. 52 of 1959, that the execution case was not maintainable, the present execution case was barred by principle of res judicata. On appeal, however, the learned Subordinate Judge took a different view on the question of res judicata holding that the principle of res judicata was not applicable as the decision of the Supreme Court as stated above had given rise to fresh opportunity to the decree‑holder to put the decree into execution and in this view of the matter rejected the objection. Hence the present appeal at the instance of the judgment‑debtor.

Mr. A. M. Chaudhry, the learned Advocate for the appel lant, has contended that as the same point was involved in the previous case and was decided against the decree‑holder that will operate as res judicata and accordingly, the lower appellate Court has erred in law in holding that the present execution case is not barred by the principle of res judicata. In support of this contention he has relied on the case‑ of United Bank of India Ltd. v. Sri Gokul Chandra Choudhry and others (15 D L R 432) while on the other hand, the learned Advocate for the respondent, namely, the decree‑holder has contended that in view of the provisions in the State Acquisition Act it cannot be held that the decision at some stage to the effect that the execution case was not maintainable at that time may not operate as res judicata subsequently. He has further relied on the case of Mohan Bashi Saha v. United Bank of India Ltd. and others (P L D 1964 Dacca 316), and the case of Mafazal Ahmed v. Haji Abdus Sattar (16 D L R 92).

In order to appreciate the respective contentions raised by the learned Advocates, it is necessary to refer to some provisions of the East Bengal State Acquisition and Tenancy Act, 1950. Subsection (1) of section 69 provides that:

"After the commencement of this Act, no Civil Court shall entertain any suit or execute any decree or order against any property of any rent receiver, for the recovery of any debt which is liable to be scaled down under section 70, until all the interests of such rent receiver which are liable to be acquired under this Act have been so acquired and compensa tion in respect of the acquisition of all such interest has been paid or deposited under section 58."

From the above provision it appears that no Civil Court shall entertain any suit or execute an order against any property of the rent receiver until all the interests of his have been acquired and compensation in respect of the acquisition of all such interests, has been paid or deposited under section 58.

The observation of their Lordships of the Supreme Court referred to above in connection with the provisions of sections 69 and 70 of the Act is:

"It is evident from the wording of section 70 that the period during which proceedings of the specified kinds shall not be entertained, is a period which commences with the acquisition of the rent receiving interest of the debtor in question and ends with the payment to him of compensation."

So even according to the provisions of sections 60 and 70 as stated above and also according to the observation of our Lordships of the Supreme Court, no Civil Court shall entertain any suit or execute any decree or order from certain date up to another date. So apparently any decision given in an execution case at a certain stage may not operate as res judicata under changed circumstances. This view of mine is also supported by the provisions in the proviso to subsection (1) of section 69 which provides that if any rent receiver fails to apply for the scaling down of his debts within the period mentioned in sub section (1) of section 70 the provisions of this subsection shall cease to apply to his debts on the expiry of the said period.

Proviso to subsection (1) of section 70 provides:

"the rent receiver shall apply in the prescribed manner for scaling down his debts to the revenue officer authorised under subsection. (1) of section 71 within 3 months of the publication under section 42 of the Compensation Assessment roll in respect to his interests or lands which have been acquired first under section 3 or section 44."

So by no stretch of imagination can it be held that any decision given in the execution proceedings at certain stage will always operate as res judicata because then by the time another execution case is filed the circumstances may change.

If all these provisions be taken into consideration they indicate that the Civil Court may entertain a suit or execute any decree or order under changed circumstances. Take for instance, when the rent receiving interest is acquired, the rent receiver may apply for protection under section 69 of the Act. But his protection will continue in certain circumstances up to the time when the compensations in respect of the rent receiving interest have been paid or deposited under section 58. His protection may be intercepted when the compensation‑rolls in respect of the interests of a rent receiver have been finally published and the rent receiver has not applied for scaling down his debts in respect of his estate within 3 months from the date of the publication of the compensation roll under section 42 of the Act. So in my opinion any decision on the question of maintainability of the suit or a petition for execution of the decree or order will not operate as res judicata for all time to come. But the Act only gives a breathing time to the judgment‑debtor to make arrangement for payment of the debt and nothing more and that has purposely been provided for inasmuch as all the interest of the rent receivers has vested in the Government and it might be that the rent receivers being of their rent receiving interest might not be in a position to pay the decretal dues.

So the decision that has been given by a Division Bench of this Court in the case of the United Bank of India Ltd v. Sri Gakul Chandra Choudhry and others to which I was also a party should be taken into consideration with reservation as it cannot be held to be a decision laying down the proposition that whenever a decision is given on an objection under section 69. of the Act in execution case that will operate as res judicata permanently. Furthermore the provisions of the Act and the changed circumstances which I have noted above were not taken into consideration in that case. Having in view the provisions of law, in my opinion, the decision that has been given by another Division Bench of this Court in the case of Mohan Bashi Saha v. United Bank of India Ltd. and others to which I was also a party may be accepted as a correct decision and I intend to follow that decision being the correct one.

In this connection it may be pointed out that section 69 is a bar to the maintainability of a suit or an application for execution of a decree or order. If that is so, can it be contended that any decision given by an executing Court whose jurisdiction has been barred under section 69 can operate res judicata. So I, accordingly, hold that the decision in Miscellaneous Case No. 52 of 1959 by the Executing Court that the Title Execution Case No. 33 of 1957 was not maintainable in view of section 69 of the Act cannot operate as res judicata in order to determine the maintainability of the present execution case, inasmuch as the circumstances have changed. I have already pointed out that from the proviso to subsection (1) of section 69 and the provisions of subsection (1) of section 70 it appears that if after the final publication of the compensation roll, the rent receiver fails to file an application in this respect within three months from the date of final publication he is not entitled to get the benefits of the said provision. I gave opportunities to the parties to ascertain when the compensation‑roll was finally published and if so whether the judgment‑debtor has applied for scaling down his debts.

Mr. Sen, the learned Advocate for the petitioner has filed a Gazette notification dated 22nd March 1962, to show that the compensation‑roll was finally published in respect of Sudharam item 187 Purba Debipur J. L. No. 103 to which the attached properties appertain on 12th of January 1962. In connection with that he has also produced an information slip to show that the judgment‑debtor did not apply for scaling down his debt even up to 8th of January 1964. So as he has not applied for scaling down his debt within time, he is not entitled to get the benefit of the subsection (1) of section 69 of the Act, in view of the provisions of the proviso to that subsection. I accordingly, find that there is no substance in this appeal.

The appeal is accordingly dismissed without any order as to costs.

K. B. A. Appeal dismissed.

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