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Girish Chandra Das--Judgment-debtor "Rent" as defined in the Bengal Tenancy Act -- Appellant means whatever is lawfully payable or deliverable v. in money or kind by a tenant to his landlord on account of use and occupation of the land held by Siba Prasad J ana and another -- c the tenant : vide S. 3, cl. (13). The two essential Decree-holders -- Opposite Party. ® characteristics of rent which differentiate it from Appeal No. 235 of 1941 and Rule No. 754 of 1941, other forms of debt are : (1) that it is due for the Decided on 9th December 1941, from original order use and occupation of the land and (2) that it is of Sub-Judge, 2nd Court, Midnapur, D/- 26th April payable to the person under whom the land is held. 1941. In the present case, the rent which is reserved by (a) Civil P. C. (1908), O. 17, R. 3 -- Applica the ijara patta is certainly payable by the appellant tion by judgment-debtor under S. 35, Bengal for use and occupation of the land, so the first con Money-Lenders Act--On undertaking by judg dition is thereby fulfilled. Mr. Chakravarti argues ment-debtor to pay Rs. 2000 within week case that the second element is lacking in this case as adjourned to 26th April 1941 for further orders-- the munafa or rent was under the terms of the On 26th April 1941 judgment-debtor filing peti mortgage document payable to his clients who were tion expressing inability to deposit amount and not the landlords and under whom the ijaradars asking for time -- Court rejecting judgment- could not be said to hold the lands. We do not debtor's prayer and also dismissing his appli think that we can accept this contention as sound. cation under S. 35, Bengal Money-Lenders Act, The mortgage bond executed by Brajendra seems for default--26th April 1941 not being fixed for to us to be a mixed, simple and usufructuary mort hearing petition under S. 35, Bengal Money d gage. There was indeed a personal covenant to pay Lenders Act, dismissal of same held bad -- ^ the money and a right of sale as in the case of a Court should have fixed another date for hear simple mortgage ; but the mortgagor expressly ing petition. assigned to the mortgagees, his right to recover rent The judgment-debtor made an application under from the ijaradars and empowered them to appro S. 35, Bengal Money-Lenders Act, on 19th April priate so much of it as was necessary to pay the 1941 but on an undertaking being given by the interest due to them. The mortgage was only of the judgment-debtor as a result of an agreement be landlord's interest, and the document expressly tween the parties to pay Rs. 2000 within a week the recites that possession of the property was delivered matter was adjourned to 26th April 1941, for fur to the mortgagee in the only way possible, namely ther orders and the case was directed to be taken by assigning over to him the right to realise rent. off from the peremptory list. On 26th April 1941, It is true that the mortgagee was not given a the judgment-debtor filed a petition stating that he right to the entire rent and he was bound to refund was unable to deposit the sum and asking for fur the balance, if any, that remained after deducting ther time. The Court rejected the prayer of the the costs of litigation and the interest due to him. judgment-debtor and by the same order dismissed: But even then the mortgage would in our opinion his.petition under S. 35, Bengal Money-Lenders Act, be regarded as a usufructuary mortgage. The defi for default: Held that the order dismissing the judgment- 2. ('42) 29     1

Cases Referring to this Case

Case Name	Citation(s)	Court	Jurisdiction	Date	Full Text †		Citation Index
Girish Chandra Das v Siba Prasad Jana	[1941] AllINRprCal 160; [1942] AIR Cal 472	All India Reporter - Calcutta	India - West Bengal	9 Dec 1941	AsianLII