P L D 1966 Dacca 102 (PLP)

K. M. HASAN, J.‑This appeal arises out of an objection under section 47 of the Code of Civil Procedure. The appellant who is the United Bank of India Limited obtained a decree in a suit for a certain sum of money. That sum was payable by some instal ments. The matter came up .to the High Court and with certain modification the appeal was dismissed by the High Court with costs. Thereafter the judgment‑debtors ; namely, the respondents before us, defaulted, according to the statements in the application of the decree‑holder, in consequence of which the decree‑holder filed an application for execution of the decree. Objection was filed under section 47 of the Code by the judgment‑debtors contending inter alia, that in view of the fact that the judgment. debtors were rent‑receivers and accordingly in view of the provision in sections 69 and 70 of the East Bengal State Acquisition and Tenancy Act the execution case was not tenable. The decree‑holder filed an objection petition against the petition under section 47 of the Code by the judgment‑debtors. The execut ing Court held that the judgment‑debtors were rent‑receivers and as such in view of the provision of sections 69 and 70 of the East Bengal State Acquisition and Tenancy Act the execution could not be proceeded with and accordingly Title Execution Case No. 13 of 1957 of that Court was stayed till the debt of the petitioners was scaled down under section 78 of the East Bengal State Acquisition and Tenancy Act. Hence this appeal. Mr. Chowdhury, the learned Advocate for the appellant, has pressed only 3 grounds. His first ground is that the cost awarded by the High Court for which the decree‑holder filed an application for execution is not a cost as contemplated under section 70 of the East Bengal State Acquisition and Tenancy Act. In support it has been argued that the cost was awarded by the High Court by its judgment dated the 13th March 1953, whereas it has been provided that the debts that were incurred before the 7th of April 1948, are liable to be scaled down. He has relied on the case of Md. Jahiruddin v. Shoarma Bibi (P L D 1960 Dacca 475) and the case of United Bank of India Ltd. v. Krishna Pada Pal (P L R 7 Dacca 106). From the Exh. B‑1 it appears that the High Court dismissed the appeal of the respondents, namely, the judgment debtors with costs on the 13th March 1953, and from the application for execution of the decree it further appears that the costs awarded by the High Court is Rs. 513 as per column 8 and from column 7 of the application it appears that the application has been filed for execution of the decree for the said amount of costs. Mr. Khadim, the learned Advocate, has contended that this cost was awarded by the trial Court before the 7th of April 1948, inasmuch as the decree was passed by the trial Court on the 21st of May 1947, and secondly as admittedly the debt was incurred before the 7th of April 1948, and the decree for costs being a consequence of that debt it cannot but be costs incurred before the 7th of April 1948. Mr. Chowdhury on the other hand has contended that from the record it appears that the costs was awarded by the High Court in 1953 and there is nothing in the record to show that any costs was awarded by the trial Court and that even assuming that the costs was awarded by the trial Court but the same merged after the decree was passed by the High Court on 13th of March 1953, into that of the High Court inasmuch as. the High Court passed the decree on 13th of March 1953. We need not refer to all these points. We find from the record that the decree for costs that is going to be executed is the decree that was passed by the High Court on 13th of March 1953 as per Exh. B‑

1. Hence, in our opinion, the execution of the A decree for costs cannot be stayed as the same is not a debt as contemplated by section 70 of the Act and the appellant is entitled to proceed with the execution case so far the decree for costs is concerned. The second ground urged is that the question whether sections 69 and 70 of the East Bengal State Acquisition and Tenancy Act are bar or not cannot be re-agitated inasmuch as this point was not 'taken before the High Court in the appeal preferred by the judgment‑debtors. In support he has relied on subsection (1) of section 69 of the East Bengal State Acquisition and Tenancy Act, 1950. We do not find any substance in this contention. Sub section (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." but in the present case the suit was filed long before the Act came into force. Furthermore the decree was passed on 21st of May 1947, by the trial Court. So the provision that no suit should be entertained by the Court does not apply. Mr. Chowdhury being faced with this position has contended that the appeal is the continuation of the suit and as such the. said provision will apply. In the present case the decree was passed by the trial Court and if subsection (1) of section 69 of the Act be applied to the appeal then in that case the appeal could not be maintain able, which position cannot be conceived of. There was a decree passed against the judgment‑debtors and the judgment‑debtors were entitled to have their grievance redressed in a superior Court ; that was not barred by the provision of subsection (1) of section 69 of the Act. Hence we do not find any substance in his contention. The next ground, urged, is that the objection under section 69 is not tenable as the respondents have failed to prove 3 items, namely, that they were rent‑receivers ; that the debt was incurred before the 7th of April 1948 and that they applied for scaling down the debt before the prescribed period. As to the first two objections it has been sufficiently proved that the respondents were rent‑receivers and the debt was incurred before 7th April 1948. These points have been elaborately dealt with by the learned Judge and we need not reiterate the same. Now coming to the last point that in order to get the benefit of sections 69 and 70 of the Act the rent‑receiver must file an application for scaling down the debt before the prescribed period, we find that no such objection had been taken in the objection petition filed by the decree‑holder in the proceeding arising out of an objection under section 47 of the Code of Civil Procedure. We do not also find that any specific ground has been taken in the Memorandum of Appeal. The determination of this question is dependant on the investigation of certain facts. As this point was not raised by the decree‑holder at any stage the judgment‑debtors were not called upon to meet this point. We accordingly find no substance in this contention also. The appeal is allowed in part, namely, decree‑holder is entitled to proceed with the execution case so far as the decree for costs amounting to Rs. 513 is concerned and as regards execution of the decree for the instalments the order of the learned Subordinate Judge is upheld. With this modification the appeal is disposed of. Having regard to the facts we direct the parties to bear their respective costs of this Court. TAIBUDDIN TALUKDAR, J.‑I agree. K. B. A. Appeal partly accepted.