P (PLP)

There is no dispute that the defaulting tenure in respect of which the rent decree was passed was sold on the 15th May 1940, under the provisions of‑ Regulation VIII of 1819, and was purchased by the decree‑holder. By reason of such purchase there was merger of the tenure in the zamindari of the decree‑holder, and the tenure lost its separate existence from that time. Thus the term of the tenancy expired when the tenure was extinguished on the 15th of May, 1990, by the purchase of the decree‑bolder in the sale held under the provisions of Regulation VIII of 1819 before section 168‑A of the Bengal Tenancy Act came into existence by the Bengal Tenancy (Amendment) Act, 1940, which came into force on the 9th January 1941. It is also admitted that prior to the present; execution proceeding and prior to the coming into force of the Amending Act of 1940, the decree was put in execution on many occasions, and some balance of the decretal dues is still unrealised. Where the term of a tenancy expires in any manner other than by surrender, for example, by the merger of the tenure with the superior interest, the provisions of the proviso to section 168‑A (1) (a) are attracted and the decree‑holder's remedy is to proceed against the other properties of the judgment‑debtor for the decretal dues or the unrealized balance of the same. The said proviso will apply even if the application for execution referred to in it is not the first or initial application and it is attracted even if the tenancy expires before the said section came into operation. We respectfully agree with the reasonings contained in the cases of Amrita Lal Chatterjee and Sree Iswar Radha Ballav Jew Thakur, (49 C. W. N. 389 and 629, respectively) and follow the same and hold that the proviso to section 168‑A (1) (a) will apply even the application for execution referred to .in it is not the first or initial application, and the said proviso is attracted even if the tenancy expires before the said section came into operation. In these circumstances, the first objection raised by Mr. Acharyya must be rejected. The next objection of Mr. Acharyya is that having regard to the express direction in the decree that the provisions of Order 21, rule 16 of the Civil Procedure Code will apply in the event of the decree‑holder intending to execute the decree as a money decree against some of the judgment‑debtors, it should have been held that in view of the proviso to Order .21, rule 16 of the Code it cannot be executed against the Appellant. Rule 16 of Order 21 of the Code of Civil Procedure is as follows :‑ "Where a decree, or, if a decree has been passed jointly in favour of two or, more persons, the interest of any decree‑holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply f6r execration of the decree, to the Court which passed it ; and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree‑holder." The second proviso to that section is as follows :‑‑ "provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others." In the last paragraph of the decree the following provision is to be found :‑‑ "Let it be stated that if the decree has to be executed against the mahal in default, then the execution may be carried on the entire decretal amount. If the decree is to be executed against the defendants personally or against any one of the defendants then the provisions of Order 21, rule .16 of the Code of Civil Procedure shall apply." Mr. Acharyya's contention is that in view of the provisions of Order 21, rule 16 of the Code and that portion of the decree to which reference has been made above, the decree‑holder cannot execute the decree against the other‑judgment‑debtors, because the decree‑holder, being one of the judgment‑debtors himself having 1/6th shares, the decree must be deemed to have been transferred to him. It is difficult to understand how the provisions of Order 21 rule 16 can come into play in respect of the decree which to all intents and purposes was a rent decree. The decree was obtained by the zamindar in his own right as sole landlord or proprietor for arrears of rent of the putni which has now ceased to exist. He has applied for execution not as a transferee or assignee of the decree from any other person but in his own right. He has not got the decree transferred or assigned to him as a judgment debtor: Rule 16 of Order 21 of the Code applied to cases of transfer by assignment in writing or by operation of law and does not apply to a case like the present one. In these circumstances we ate of opinion that the provisions of Order 21, rule 16 of the Code do not apply. It is not known bow that provision was‑incorporated in the decree and it is not correct for' Mr. Acharyya to argue that the executing Court has gone behind the decree. As executing Court the learned Sub ordinate judge construed the words incorporated in the decree and has come to the conclusion and, in our opinion, rightly that the provisions of Order 21, rule 16 of the Code do not apply to the facts of the present case. On this ground the objection raised by Mr. Acharyya must be rejected. The last objection of Mr. Acharyya is that the Court below was wrong in holding that the appellant is barred by Explanation IV to section 11 of the Code of Civil Procedure from raising the plea as to the applicability of the provisions under Order 21, rule 16 of the Code of Civil Procedure although the same was specifically' mentioned in the decree itself. It is not necessary for us, to record our opinion on this objection, as we have found against the appellant on the first two objections. For the reasons stated above, this appeal is' dismissed with costs. AKBAR, J.‑I agree. A. H. Appeal dismissed.