A.C. Sen, J.@mdashThe present appeal arises out of a petition of objection filed u/s 47, Code of Civil Procedure, and is directed against the judgment and order of the District Judge, 24-Parga-nas dated July 27, 1961 in Misc. Appeal No. 711 of 1960 affirming the judgment and order of the learned Munsiff, Second Court, Basirhat, dated June 30, 1960 in Misc. Judl. Case No. 101 of 1959. The appellant got a decree for arrears of rent in Rent Suit No. 1994 of 1955 on June 14, 1955. The present application for execution was presented on March 3, 1959 when the period of limitation was about to expire. The application for execution was registered as Rent Execution Case No. 85 of 1959. The petition of objection u/s 47, C.P.C. was filed on July 28, 1959.
2. To appreciate the objection it is necessary to state certain facts. The decree holder being an intermediary his rent receiving interest vested in the State of West Bengal on April 15, 1955. The decree holder, thereafter, made an application u/s 9 of the West Bengal Estates Acquisition Act, 1953, and the said application was granted by the Government of West Bengal. Section 9 gives an intermediary an option to have arrears of rent collected through the State Government on certain conditions. Section 8 of the Act provides that all arrears of rent and cess together with interest thereon and other amounts lawfully recoverable by an intermediary on the date of vesting from any person, in respect of any interest of such intermediary which vests u/s 5 and all sums due from such person in respect of any decree for arrears of rent in respect of such interest, whether having the effect of a rent decree or money decree and whether obtained before or after the date of vesting, the execution of which is not barred by limitation, shall continue to be recoverable by such intermediary.
3. Sub-section (1) of section 9 says that an intermediary may apply to the State Government for recovery by the State Government of all sums recoverable by him under the provisions of section 8. Sub-section (3) of section 9 provides that if the State Government grants the application it shall be competent for the State Government to recover all such sums as if they were public demands, or in any other manner as if the State Government were the intermediary.
4. As the application of the decree-holder appellant has been granted by the State Government it is the State Government who is competent to recover the sum due to the decree-holder by the judgment debtor respondent. The judgment debtor respondent, therefore, filed the petition of objection u/s 47, C.P.C. contending the decree-holder appellant was not competent to execute the decree because his application u/s 9(1) had already been granted. The argument is that if an application u/s 9(1) is granted by the State Government the applicant''s right to recover decretal dues vests in the State Government. The State Government may recover the decretal dues of the applicant intermediary either by certificate proceeding or in any other manner.
5. The State Government is competent to recover all sums recoverable by an intermediary whose application u/s 9(1) has been granted as if the State Government were the intermediary. By a legal fiction the State Government is to be regarded as the intermediary. u/s 8 the intermediary himself can recover all arrears of rent and all sums due in respect of any decree for arrears of rent. The alternative mode of recovery is to apply to the Government u/s 9 asking the Government to recover all sums recoverable by him u/s 8.
The intermediary cannot be allowed to pursue both the modes of recovery simultaneously. As soon as he makes an application u/s 9(1) he elects not to recover the dues himself u/s 8. If the Government takes step to recover the arrears, whether embodied in a decree or not, the intermediary himself cannot execute his decree for arrears of rent during the pendency of the recovery proceeding initiated by Government. It is not necessary for us to decide whether the intermediary will be competent to take steps for the execution of the decree if Government fails to recover the decretal dues or any part thereof and the proceeding for recovery initiated by Government is terminated. That question is being kept open.
6. In the instant case, the proceeding initiated by Government for recovery of the arrears of rent embodied in the decree for rent was pending at the date when the appellant decree-holder applied for execution. The Courts below are therefore justified in holding that the decree cannot be executed by the appellant decree-holder and in allowing the petition of objection filed by the respondent judgment debtor.
7. The learned Advocate for the appellant decree-holder invoked the doctrine of simultaneous execution in order to show that the decree-holder was competent to proceed with the execution in the executing court even though Government had already initiated proceeding for recovery under the Public Demands Recovery Act. It is needless to point out that the question of simultaneous execution usually arises when the Court which passed a decree sends it for execution to another Court. In the instant case there is no question of the transfer of the decree by one court to another. Even when a decree is transferred to another court the power of concurrent execution is sparingly used. For instance, in the case cited on behalf of the appellant, namely, (1) Dwarkanath Chuckerbutty v. Imperial Bank of India 33 C.W.N. 620 the High Court made an order directing the lower Court viz., the Alipore Court not to proceed with the execution of the decree-holders produced an order from the Court which passed the decree, viz., the Original Side of the High Court at Calcutta, that all the properties which had been attached by the decree-holders within the jurisdiction of that Court had been sold and the decree remained unsatisfied or that those properties had been released from attachment. In (2) Gurudas Adhya v. Jnanendra Narayan Bagchi, 39 C.W.N. 165, another case cited on behalf of the appellant it has been held that an application for transfer u/s 39 C.P.C. for simultaneous execution should not be allowed without giving the judgment debtor an opportunity to oppose the application and that before passing the order for transfer the transferor court must be satisfied on affidavit and from the surrounding circumstances that the properties within the jurisdiction of the transferor court are not sufficient to satisfy the decree. In the instant case, however, the question of simultaneous execution cannot arise, because the certificate officer cannot be regarded as the transferor Court within the contemplation of section 39 C.P.C.
8. In the result, the appeal cannot succeed. The appeal is accordingly dismissed but there will be no order for costs.
S.K. Chakravarti, J.
9. I concur with my Lord in the judgment just now delivered by him. I would like to add a few words only.
10. The appellant is an intermediary and so is the respondent under him. The appellant filed a suit for arrears of rent against the respondent on 14th of June 1955 to realise a sum of Rs. 387-12 annas and 9 pies being the arrears including damages from 1359 to 1361 B.S. The suit was decreed on contest on the 6th of March 1956. In the meantime the West Bengal Estates Acquisition Act 1953, hereinafter referred to as the Act, came into operation, and the date of vesting is 10th of April 1955. The appellant applied to the State Government u/s 9 of the Act for recovery by the State Government of all sums recoverable by the present appellant under the provisions of section 8. That application was granted by the State Government which issued also certificates to recover the arrears in question. During the pendency of the proceedings instituted by the State Government against this respondent as well, the decree-holder did not choose to wait till those proceedings came to an end, but, on the 3rd of March 1959, filed the instant execution case to realise the decretal dues. The respondent protested u/s 47 of the Code of Civil Procedure, that, in view of the pendency of the proceedings under the application u/s 9 at the instance of the State Government, the present execution case would not lie. This plea found favour with the learned Munsif who dismissed the execution case accordingly, and the learned District Judge, Alipore, in appeal confirmed the same findings.
11. The point for determination in this appeal is, as to whether, in the circumstances, the decree-holder can simultaneously proceed to execute the decree, while the proceedings by the State Government u/s 9 of the Act are pending.
12. Mr. S.N. Basu, learned Advocate appearing for the appellant, urges that by a taking recourse to the provisions of section 9, the decree-holder does not deprive himself of the right to execute the decree independently and that the provisions of section 9 were by way of additional measures only. He further submits that simultaneous execution cases are in accordance with law and relies on the decisions of this Court in (1) Dwarkanath v. Imperial Bank, 33 CWN 620, and (2) Gurudas v. Jnanendra 39 CWN 165. He has further drawn our attention to sub-section (5) of section 9, under which "the State Government shall not be liable if it fails to recover the whole or any portion of the sums referred to in sub-section (1)", and submits that if the State Government ultimately fails to realise the arrears the decree-holder would be without any remedies as in the meantime his execution case would be time barred.
13. Mr. Basu is quite correct in his submission that the provisions of section 9 are by way of an additional method of realising the arrears of the intermediary. The word "may" in sub-section (1) of section 9 would indicate that an intermediary is not bound to apply to the State Government for realisation of his arrears u/s 9, but that, it is optional for him. The marginal notes against section 9 would also clarify the position. The intermediary thus has his ordinary right in law to apply to the Civil Court for realisation of his arrears, and he has also been given an option to have the arrears realised through the State Government.
14. But the question now is as to whether when the State Government, on an application by the intermediary, is proceeding to realise the arrears, the decree-holder can, also at the same time, proceed to realise the arrears in execution of the decree. There can be no doubt of the fact that if the simultaneous proceedings, as envisaged above, are carried on, it would cause immense hardship and inconvenience to the judgment-debtor. In the decisions relied on by Mr. Basu it has also been clearly laid down that simultaneous execution proceedings will not be allowed, if it causes hardship or inconvenience to the judgment-debtor. In Dawarknath''s case this Court went so far as to lay down that the sale in the other execution case should not be held till the sale in the execution case before the court which passed the decree was held, and the sale proceeds were insufficient to meet the dues of the decree-holder. In Gurudas''s case the court found that actually, by the sale of the properties within the jurisdiction of the court which passed the decree, the decree could not be satisfied. These decisions, therefore, would not help the decree-holder in the present case, and would rather show that simultaneous proceedings to realise the decree-holder''s dues should not be allowed, as it would cause inconvenience or hardship to the judgment-debtor. It is not the decree-holder''s case before us, that the State Government will not be in a position to realise the dues of the decree-holder by proceeding in the certificate cases or in any other manner.
15. It is necessary to re-call sub-section (3) of section 9 of the Act in this connection. It reads as follows:-
"If the State Government grants the application, it shall be competent for the State Government to recover all such sums as if they were public demands, or in any other manner as if the State Government were the intermediary." The clause "as if the State Government were intermediary", in my view, is a significant one. It would mean that as if the State Government was substituted in the place of the intermediary for the purpose of realisation of the dues of the intermediary. The State Government may also be regarded as the assignee of the dues from the intermediary. A simultaneous proceeding by the principal, as also by the substituted plaintiff, or the plaintiff''s assignee, would not lie in law. It cannot be held that the clause "as if the State Government were the intermediary" has been added to sub-section (3) for nothing. Each word in a statute has a meaning and a purpose. That is an ordinary canon of interpretation of statutes. By adding these words, the legislature definitely meant that the State Government was to be substituted, so to say, in place of the intermediary, for the purpose of realisation of his dues. In this view also, the simultaneous proceeding would not lie.
16. Under sub-section (4) the State Government is also to deduct from the sums recovered on behalf of the intermediary "the actual cost of recovery subject to a minimum of twenty per centum of the amount recovered." If simultaneous proceedings are allowed, and if in case, the intermediary realised in his own execution cases the arrears, the State Government will not be permitted to realise the same again, and in the circumstances the State Government would not be entitled to recover the cost incurred by it in attempting to recover the dues of the intermediary. The purpose of sub-section (4) may, in same circumstances, if simultaneous proceedings are allowed, be frustrated.
17. When an intermediary applies to the State Government to realise his dues by the State Government he takes some risk. If he takes the risk, he cannot complain of a bad bargaining. There is also no guarantee that the inermediary himself would succeed in realising his dues in his own execution case. As a matter of fact, as an intermediary may find some difficulties in realising his dues after the date of vesting from his tenants, that he takes recourse to section 9, and that is one of the main reasons why section 9 is there. Therefore, on the off chance of the State Government failing to recover, the intermediary cannot have a right to execute this decree simultaneously. Whether if the State Government fails to realise the dues, the intermediary would be entitled in law, to execute his decree obtained earlier, and get the benefit of section 14 of the Limitation Act, are matters which do not arise for consideration in this proceeding, and I do not, therefore, decide this point. The result, therefore, is that we must hold that a simultaneous proceeding for execution of his decree by the decree-holder, when he has already applied to the State Government for realisation of his dues u/s 9 and especially when such application has been granted, and proceedings under the same have been instituted by the State Government and been pending on 3-3-59 would not lie, and in the circumstances I agree with my Lord that the present appeal must be dismissed.
