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Civil Appeal No. 13‑D of 1959, decided on 1st June, 1959.
(On appeal from the judgment and decree of the Dacca High Court dated the 13th May, 1958 in Original Order No. 110 of 1955).
‑Execution under final decree in suit for sale based on mortgage secured wholly upon properties of rent‑receiver not liable to be acquired under the Act‑Not subject to bar imposed by S. 69.
Abu Muhammad Abdullah, Advocate Supreme Court, instructed by Naimuddin Ahmad, Attorney for Appellant.
A. F. M. Mesbahuddin, Advocate Supreme Court, instructed by Abdul Matin Khan Chowdhury, Attorney for Respondent.
Date of hearing : 1st June 1959.
‑This certificated appeal by the Aryasthan Insurance Company, Limited against one Nural Islam Chowdhury raises a question as to the interpretation of sections 69 and 70 of the East Bengal State Acquisition and Tenancy Act, 1950, i.e. whether an execution under a final decree in a suit for sale based on a mortgage secured wholly upon properties of a rent‑receiver which are not liable to be acquired under the aforesaid Act is subject to the bar imposed by section 69 thereof. In relevant respects, the facts are identical with those in Civil Appeal No. 10‑D of 1958 "United Industrial Bank Limited v. Mohan Bashi Saha and another" decided by this Court on 28th May 1959. The civil proceeding there in question was a civil suit, but the bar of section 69 applies equally to civil suits as to executions of civil decrees. It was held in that case that where a mortgage is secured wholly upon property of a rent‑receiver which is not liable to be acquired under the Act, a suit to enforce the mortgage is not barred by section 69 thereof, but a Court may entertain and proceed with such a suit irrespective of anything contained in section 69.
Mr. Mesbahuddin has not been able to suggest any reason why our judgment in the earlier case requires to be reconsidered, or that there is any material point of difference between the two cases. We notice that in the judgment under appeal, the provisions of Rules 73 and 74 and of Forms Nos. XIII, XIV and XV contained in the East Bengal State Acquisition Rules, 1951, have been considered in some detail. Having examined the treatment of these rules by the learned Judges, we see no reason to modify the opinion expressed on the point in our earlier judgment. It was there said that these Rules and Forms appear to be designed rather to facilitate estimation of the total income of a rent‑receiver for certain purposes under the Act, than to exhibit his various properties in full detail, with special reference to questions such as that arising in the present case. It was also said that it was not possible "to rely upon inferences derived from the matters contained in or omitted from the aforesaid Rules and Forms, for the purpose of defeating the clear intention of the Legislature expressed in the main statute" and particular emphasis was placed on the words of the second proviso to subsection (5) of section 70 of the Act in this connection.
An application was made to its for permission to allow the name of the Life Insurance Corporation of India to be substituted for that of the Aryasthan Insurance Company as the appellant. A similar application was made to the High Court and was rejected. We see no reason to allow this application, and we accordingly reject it.
The appeal is allowed and the orders of the High Court and the Subordinate Judge are set aside, and it is directed that the execution case should now be proceeded with according to law.
In the circumstances of this case, we make no order as to costs in this Court, but we direct that costs in the High Court shall be borne by the parties themselves.
K. B. A.
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