Judgement

Appeal (No. 109 of 1928) from a decree of the High Court (March 25, 1926) reversing a decree of the Subordinate Judge of Kulna (December 24, 1926).

On November 11, 1921, the respondents brought the present suit against the appellants who were landlords of a dar-gant tenure which was created before the Bengal Tenancy Act, 1885, but was subject to its provisions. The plaintiffs claimed a declaration of their title to the tenure, and an injunction restraining the appellants from executing by a sale of the tenure three decrees, dated respectively June 14, 1911, August 18, 1915, and November 7, 1919, which were made in suits to which they had not been joined as defendants.

The appellants pleaded (inter alia) that the decrees were rent decrees which they were entitled to execute by attachment and sale of the tenure under Ch. XIV. of the Act; they also pleaded that the suit was barred by limitation.

The facts appear from the judgment of the Judicial Committee.

The Subordinate Judge dismissed the suit.

On appeal to the High Court the decision was reversed and an injunction granted. The learned judges (Chatterjee and Panton JJ.) held that the plaintiffs had a right by purchase of the tenure, though the exact nature of the right should be left open, and that the decrees were not rent decrees which could be executed by attachment and sale of the tenure under the Bengal Tenancy Act, 1885, as they were for sums which included interest which was not due under the kabuliyat and were not a charge upon the tenure under the Act. It was held, further, that the suit was not barred by the Indian Limitation Act, 1908, Sch. I., art. 120. The decrees could be executed either as money decrees or as rent decrees, and until the landlords took steps to execute them as rent decrees the plaintiffs were not affected. Time ran therefore from the date when the landlords applied for a sale of the tenure, not from the date of the decrees.

1930. May 18, 19, 21. De Gruyther K.C. and Parikh for the appellants. The decrees were rent decrees binding upon the tenure and entitling the landlords to sell it under Ch. XIV. of the Act. The landlords were not bound to join as defendants persons who were not recorded in their serishta or record of tenants Sham Chand Kundu v. Brojonath Pal Chowdhury (( 1873) 21 S. W. R. (C. R.) 94.); Rash Behary Bundopadhya v. Peary Mohun Mookerjee (( 1878) I. L. R.,4

C. 346.); Panye Chunder Sircar v. Hurchunder Chowdhry (( 1884) I. L. R. 10 C. 496.); Jeo Lal Singh v. Gunga Pershad. (( 1884) I. L. R. 10 C. 996.) There is no case holding that the above decisions do not apply under the Act of 1885. There is no suggestion to that effect in the judgment of the Board in Chunder Butt v. Earn Kumar Chatterji (( 1904) L. R. 31 I. A. 195.) delivered in 1904. It was not proved that the appellants had notice of the plaintiffs interest. As the tenure was created before 1885 the provision for interest in the kabuliyat could be given effect to. Sect. 178, sub-s. 3, expressly refers only to contracts made after the passing of the Act; in that respect it contrasts with s. 178, sub-ss. 1 and 2. The inclusion of the interest did not prevent the decree from being a rent decree Madhu Mala v. Alfazuddi Kazi. (( 1909) 13 C. W. N. 962.) Even if upon the true construction of the kabuliyat the 75 per cent, interest was not due, the decrees were rent decrees under the Act, and the appellants had a statutory right to execute them by a sale of the tenure. Sect. 170, sub-s. 1, by excluding the application of ss. 278 to 283 of the Code of Civil Procedure, 1908, precluded the respondents from contesting that right, whatever other rights they may have. In any case the decrees could be executed to the extent to which they were for rent recoverable under the Act. Further, the suits were barred by the Indian Limitation Act, 1908, Sch. I., art. 120, as the right to sue accrued at the date when the respective decrees were made.

Dunne K.C. and Dube for the respondents.