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Second Appeal No. 16 of 1956, decided on 17th June 1957, against the order of Najabuddin Ahmed, Subordinate Judge, Chittagong, affirming the order of K. Ahmed, Munsif, Sadar, Chittagong.

Civil Procedure Code (V of 1908), S. 47‑Power of execut ing Court to take notice of subsequent events

An executing Court can certainly take note of the altered circumstances, but whether or not in a particular case it should allow execution to proceed and leave the party who considers himself aggrieved to file a separate suit should, depend upon the circumstances of that case.

Pasupati Ramabhadra Raju v. Ayitha Ramana and others A I R 1952 Mad. 125 ref.

Bukkan Singh and another v. The District Board, Ludhiana I L R 14 Lah. 230 ; Shyam Mandal v. Sari Nath Banerjee and others 24 C L J 523 ; Muho Kishen v. Hurish Chunder 1867 (7) W R 142 and Forbes v. Maharaj Bahadur Singh (1914) I L R 41 Cal. 926 P C ref.

Maksum‑ul‑Hakim for Syed A. N. M. Nasiruddin for Appellant.

B. C. Das and Ahmad Sobhan for Respondents.

This appeal is directed against a decision pf N. Ahmed, Subordinate Judge, Third Court, Chittagong, in Miscellaneous Appeal No. 265 of 1955, affirming the judg ment and order passed by Mr. K. Ahmad, Munsif, First Court, Sadar, Chittagong, in Miscellaneous Case No. 22 of 1955.

The facts of this case in so far as they are relevant for the purposes of appreciating the points that have been placed before me may be very briefly stated as follows :‑

The petitioner‑appellant Sultan Ahmad was a tenant of the opposite‑parry respondents, Mathura Mohan Chowdhury and others, under an agreement by which .039 acres of land in R. S. plots Nos. 1579 and 1580 of khatian No. 472 in mauza Battali within Chittagong Municipality was leased out to the said Sultan Ahmed for a period of nine years with a clause for a renewal of the lease thereafter. The said period of nine years expired on the 15th Magh, 1353 B. S. Sultan Ahmed erected certain structures on the said land and held over after the expiry of the term of the lease. Mathura Mohan Chowdhury and others thereafter treated Sultan as a monthly tenant‑at‑will. They determined the tenancy by service of notice under section 106 of the Transfer of Property Act. Thereafter they instituted a suit against the said Sultan Ahmad for recovery of arrears of rent and for ejecting him from the suit land. The suit came to be marked as O. S. No. 24 of 1950 in the Munsif's Court at Chittagong. This suit ended in favour of the plaintiffs who obtained a decree for arrears of rent and recovery of possession of the suit land against the said Sultan Ahmed. The plaintiffs. namely, Mathura Mohan Chowdhury and others, then instituted an Execution Case, namely, No. 57 of 1953, for recovery of khas possession of the said land from the judgment‑debtor, namely, Sultan Ahmed. The said Sultan Ahmed filed the present objection against the execution of the aforesaid decree which was sought to be executed by the plaintiffs. The objection was made under section 47 of the Code of Civil Procedure and it came to be marked as Miscellaneous Case No. 22 of 1955. The petitioner‑ appellant Sultan Ahmed in Miscellaneous Case No. 22 of 1955 contended, inter alia, that the decree obtained by the opposite‑party :decree‑holders has become incapable of execution because, since the passing of the decree in favour of the decree‑holders, all their interests in the suit land have been acquired by the Government of East Pakistan under the provision of the East Bengal State Acquisition and Tenancy Act, 1950 (East Bengal Act XXVIII of 1951). It was further contended that the application for execution of the said decree by the decree‑holders is barred by the provision of section 30 of the said State Acquisition and Tenancy Act, 1950. There were various other objections. taken which need not be set out here. It may, however, be stated that the petitioner Sultan Ahmad now claims the suit land on an independent right, namely, as a tenant under the said Government. The learned Munsif disposed of the petitioner's objection by holding that it does not transpire whether the decree‑holders' khas land was also acquired by the Government of East Pakistan. The learned Munsif over ruled the contention of the peti tioner, Sultan Ahmed, and dismissed his application by a judgment passed by him on 16th August 1955. Against the said judgment and order passed by the said learned Munsif in the aforesaid Miscellaneous Case, the petitioner‑appellant, Sultan Ahmed, preferred an appeal which was heard and dis posed of by the aforesaid learned Subordinate Judge. In stating the facts of the case, the learned Subordinate judge observes as follows :‑

"The estate of the O. P., to which the disputed land appertains viz. Touzi No. 2316 Bahali Jimma Murulla, was occupied (sic) by the Government under section 3 (1) of the East Bengal State Acquisition Act, 1950, with effect from lst June 1954, vide Notification No. 5490 L. R., dated 10th April 1954, published in the Dacca Gazette, dated 20th April 1954. The petitioner therefore filed the present objection under section 47, Civil P. C. (Miscellaneous Case No. 22/54), on 15th March 1955 contending, inter alia, that the interest of the O. P. D. H. having been acquired by the Government, the O. P. was not entitled to proceed with the execution, and that the petitioner had also approached the Government for recognition of his tenancy. The learned Munsif over‑ruled the petitioner's objection and dismissed the Miscellaneous Case. Hence this appeal by the peti tioner. But during the pendency of this appeal, preparation of the record‑of‑rights under Chapters IV and V of the State Acquisition and Tenancy Act, 1950, was taken up after prescribed notification under section 17 of the Act, and the Revenue Officer recognised the petitioner as a tenant and O. P. as rent receiver in respect of the disputed land, to which the O. P. objected. But the said objection of the O. P. was disallowed by the Revenue Officer on 18th November 1955 and the O. P. preferred an appeal which is now pending before the Settlement Officer".

The learned Subordinate Judge further held that the applica tion for execution of the decree by the respondent‑decree holders was not his by the provisions of section 30 of the East Bengal State Acquisition and Tenancy Act, 1950. He also held that the suit land was khas land and, therefore, the suit land was not acquired by the Government of East Bengal under the notification made under subsection 1 of section 3 of the said Act. He, therefore, dismissed the appeal and upheld the judgment and order passed by the learned Munsif, namely, order No. 19, dated 16th August 1956. Against the aforesaid judgment and order passed by the learned Subordinate judge, the petitioner appellant, Sultan Ahmed, has preferred this appeal.

At the hearing of this appeal, Mr. Maksum‑ul‑Hakim, Counsel, for Mr. Syed A. N. M. Nasiruddin, appeared for the petitioner‑appellant and Mr. B. C. Das with Mr. Ahmed Sobhan for the respondents.

Mr. Hakim has taken me through the judgments pro nounced by both the Courts below. He has pointed out that the Appellate Court below has taken notice of the fact that, in the record‑of‑rights prepared under the East Bengal State Acquisition and Tenancy Act of 1950, it has been recorded that the disputed land has been acquired as a rent receiving interest and that the respondents‑decree holders have been shown as rent‑receivers in respect thereof and the petitioner appellant has been recorded as a tenant under Government. He has, therefore, contended that the legal position is that the disputed land has been acquired by Government as a rent‑receiving interest and all the interests of the decree holders‑respondents in the suit land have been. wiped out by operation of law. This will be evident from the record‑of -rights as it now exists. He has further argued that the record‑of‑rights cannot be challenged in Court by virtue of the provision of section 30 of the said Adt. Mr. Hakim has, therefore, submitted that the legal relationship between the petitioner appellant and the decree‑holders‑respondents has been completely altered by certain steps taken by the Government of East Pakistan in respect 3f the suit land under the provision of the said Act. He has further contended that the Appellate Court below erred in not holding that an executing Court can and, in proper cases, should take notice of the altered jural relations of the parties in order to find out whether the decree sought to be executed is capable of execution in the light of events that have taken place sub sequent to the passing of the decree. Mr. Hakim has also argued that it is clear from the record‑of‑right‑a which have been prepared under the said Act, and which has been noticed by the learned Subordinate judge, that the decree‑holders respondents have no subsisting interest in the suit land and that in consequence thereof the decree obtained by the opposite parties respondents have become incapable of execution. Mr. Hakim has further contended that the learned Subordinate judge was wrong in finding that the disputed land is a khas land. He has criticised the manner in which the learned Subordinate judge has come to the aforesaid finding. He has submitted that the test is: how has the Government acquired the property It was submitted that as the Govern ment has treated the interest of the decree‑holders‑respondents in the suit land as those of a mere rent‑receiver and inasmuch as Government has acquired such rent receiving interest, the rights of the decree‑holders‑respondents have been completely extinguished by such acquisition by Government, Mr. Hakim has also submitted that the petitioner‑appellant, Sultan Ahmed, has since the passing of the aforesaid decree been holding the suit land as a tenant under Government and consequently he claims an independent right as such tenant. In this Court, it was further argued on behalf of the petitioner appellant that the record‑of‑rights prepared under the said Act cannot be challenged in a Court of law by virtue of section 30 of the Act. My attention was drawn to the following notifications:‑

"In exercise of the power conferred by subsection (1) of section 3 of the East Bengal State Acquisition and Tenancy Act, 1950 (East Bengal Act No. XXVIII of 1951), it is hereby notified for the information of all concerned that the Governor is ;.leave to acquire, with effect from 1st June 1953, all interests of the rent receivers named in Column I of the Schedule below in the estates and taluks and tenures. the particulars whereof are given in Column 2 of the Schedule against their names, including all their interests in all sub‑soil and rights to minerals in such estates and taluks and tenures".

In the first column, the names of the decree holders respondents have been shown in the said Gazette notification and in the second column touzi No. 23116, Bahali Jimma Nurulla, Khatian No. 472, has been shown. It is admitted that the disputed land appertains to the said touzi. The second notification reads as follows:‑

"No. 4846‑L. R.‑2nd April 1956.‑In exercise of the power conferred by subsection (2) of section 3 of the East Bengal State Acquisition and Tenancy Act, 1950 (East Bengal Act XXVIII of 1951), as amended by the East Bengal State Acquisition and Tenancy (Amendment) Ordinance, 1956 (East Bengal Ordinance III of 1956), it is hereby notified for the information of all concerned that the Governor is pleased to acquire, with effect from the 14th April 1956, all lands in the khas possession of all rent‑receivers situated in the district of Chittagong other than the classes of lands coming under clauses (a) and (b) of subsection (2) of section 20 and other than such lands as have already been acquired by, and have already vested in, the Provincial Government under the provisions of the said Act."

After the aforesaid notifications, record-of‑rights have been prepared under the provisions of the Act and it is clear that the learned Subordinate judge has taken notice of the record- of‑rights as prepared by the Revenue Officer under the said Act and of the objection made by the decree‑holders respondents as well as the appeal which is now pending with regard to the objection made by the decree‑holders‑respondents in the preparation of the record‑of‑rights.

Mr. Das appearing for the decree‑holders‑respondents has cited authorities which establish that a mere transfer of the subject matter of a decree does not necessarily operate ipso facto as transfer of the decree itself. I do not think I am called upon to consider those authorities in disposing of the present appeal. Mr. Das has further contended that if the disputed land is khas land of the decree‑holders‑respondents, they have a subsisting interest in the said land by virtue of the provisions of clauses (a) and (b) of subsection 20 of the Act. If the disputed land is a land in khas possession of the decree‑holders‑respondents within the meaning of clauses (a) and (b) of subsection 2 of section 20 of the said Act, then the contention of Mr. Das is right, but, in deciding whether the disputed land is khas land of the decree‑holders‑respond ents, the entries in the record‑of‑rights prepared under the said East Bengal State Acquisition and Tenancy Act, 1950, cannot be ignored, particularly when the learned Subordinate Judge has taken notice of the same.

With regard to the point that an executing Court is entitled to take notice of the altered jural relations between the parties to the execution since the passing of the decree, which is sought to be executed, reliance has been placed on the following cases:‑

(1) In the case of Pasupati Ramabhadra Raju v. Ayitha Ramana and others, (A I R 1952 Mad. 125), Balakrishna Ayyar, J., observes as follows:‑

"Mr. B. V. Suhramaniam, the learned Advocate for the ' appellant, argued that the decision of the Courts below was wrong because an executing Court just like a trial Court must take notice of facts that have happened sub sequent to the passing of the decree or the institution of the suit, as the case may be, and that where the jural basis 'on Which :the decree was passed has since the date of the decree ceased to 'exist, the executing Court should refuse to execute the decree. In support of this argument, he referred me 'to' the decision of Venkataramana Rao, J., in Annamalai v. Srinivasaraghava (A I R 1938 Mad. 293). Towards the end of the judgment, the learned judge remarked:

"No doubt ordinarily a Court should deal with the rights of the parties as they stood at the institution of the suit, but where the continued existence of those rights is an essential requisite for according the relief asked for and such rights have been lost before the relief could be granted, the Court cannot but take notice of the altered circum stances and decline to give the petitioners that relief to which they, by their own act in bringing the property to sale before filing the petition, have disentitled themselves".

As a general proposition, this is undoubtedly correct enough.

But I do not think that the learned judge intended to lay down any inflexible rule. An executing Court can certainly take note of the altered circumstances, but whether or not in a particular case it should allow execution to proceed and leave the party who considers himself aggrieved to file a separate suit should, it seems to me, depend upon the circum stances of that case. In certain situations, for instance, the executing Court would stultify itself by trying to execute the decree. Suppose, for example, a Court were to grant a decree for restitution of conjugal rights: now, if before the decree in that suit is being executed, another competent Court were to grant a divorce to the parties, it will be ridiculous to attempt to execute the earlier decree. That would be an obvious case at one end of the series. On the other hand, the. events that have transpired might be of such a character that to ascertain the truth of what happened and their true legal import might require a very protracted enquiry. In such a case, it may be more appropriate for the executing Court to refer the parties to a separate suit.

In the case of Bukkan Singh and another v. The District Board, Ludhiana (I L R 14 Lah 230), it was held that it is a well‑established proposition that an Executing Court is not entitled to go behind the decree and must take it as it stands, but the question whether a decree is or is not capable of execution falls within the scope of section 47 of the Code of Civil Procedure. In that case, the objection to the execution of the decree was that since the passing of the decree subsequent events have rendered the decree incapable of execution. In the case of Shyam Mandal v. Sati Nath Banerjee and others (24 C L J 523), Sir Ashutosh Mukherjee, J., at page 528 of the report, observes as follows:

"The first contention of the judgment‑debtor is to the effect that the institution of the suit for rent by the landlords has rendered the decree for ejectment previously obtained incapable of execution; the argument in substance is that the forfeiture has been waived. It is clear that an objection of this character may' properly be taken in proceedings in execution of the decree; the judgment‑debtor, when he takes such objection, does not attack the decree; merely he urges that the decree, though properly made, has, by reason of events subsequent, become incapable of execution. Thus it was ruled in Muho Kishen v. Hurish Chunder (1867 (7) W R 142) that receipt of rent subsequent to a decree for ejectment under section 78 of the Bengal Rent Act, 1859, from a tenant against whom the decree was passed renders execution of the decree impossible. Similarly, it was ruled by the Judicial Committee in Forbes v. Maharaj Bahadur Singh ((1914)ILR41Ca1.926PC) that a decree for ejectment made against a tenant at the instance of his landlord under section 66(1) of the Bengal Tenancy Act cannot be executed, if the decree holder ceases to be the landlord after he has obtained the decree. We must, consequently, consider the effect of the institution of the suit for rent on the decree for ejectment." In the present case, the objection of the petitioner‑appellant under section 47 of the Code of Civil Procedure to the execu tion of the decree passed in O. S. Suit No. 24 of 1950 is based not on the ground that the said decree was void but on the ground that the decree has by reason of events that have taken place subsequent to the passing of the said decree become incapable of execution. The learned Subordinate Judge has taken notice of the notifications quoted above and have entered into the question whether the interests of the decree‑holders‑respondents in the disputed land are those of mere rent‑receivers, or whether the said decree‑holders respondents can claim the said land to be their khas land. The learned Subordinate Judge has also taken notice of the fact that in the record‑of‑rights prepared under the said Act the decree‑holders‑respondents have been described as rent receivers and the petitioner‑appellant as a tenant. He has further taken notice of the fact that the decree‑holders respondents have objected to the said record‑of‑rights prepared by the said Revenue Officer and that there is a pending appeal with regard to the said matter preferred by the decree‑holders‑respondents. The learned Subordinate Judge has, however, ignored the entries in the record‑of‑rights as quoted above in ascertaining the altered jural relationship between the parties since the passing of the said decree. I am of opinion that this Misc. Case No. 22 of 1955 should be disposed of after the final disposal of the objection raised by the respondents in respect of the record‑of‑rights prepared under the provision of the East Bengal State Acquisition and Tenancy Act, 1950. The notifications quoted above should be read along with the record‑of‑rights prepared under the said Act and the jural relation of parties should be determined after the final disposal of the dispute in respect of the said record‑of‑rights.

In these circumstances, I allow this appeal and set aside the judgment and order passed by the learned Subordinate Judge in Miscellaneous Appeal No. 265 of 1955. It is ordered that this case be sent back on remand to the learned Appellate Court below for a re‑hearing of the appeal. It should dispose of the appeal in accordance with law after the final disposal of the decree‑holders‑respondents' objection with regard to the preparation of the record‑of‑rights under the provision of the East Bengal State Acquisition and Tenancy Act, 1950.

Costs will abide the result of the appeal in the Court below. Leave under Clause 15 of the Letters Patent, as prayed for, is refused.

M. S.

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