P. B. MUKHAKJI, J.

( 1 ) THIS is an appeal from the judgment of the learned trial Judge dismissing the plaintiff's suit with costs.

( 2 ) THE suit was instituted by the plaintiff on the 17th February, 1950, for the delivery of possession of a shop room in premises No. 46/a, Netaji Subhas Road, Calcutta, and for seeking other incidental reliefs. The plaintiff's case was that he was carrying on business as a dealer in paints and varnish at the said shop room as a monthly tenant paying rent at the rate of Rs. 144-6 per month under the name and style of D. Mullick and Company. He was indebted to a person called Gopal Lal Daga who instituted a suit being Suit No. 610 of IMS against the present plaintiff under Order 37, Civil P. C. , for the sum of Rs. 3735-9-9 on certain hundis. That suit was decreed with costs on 7-5-1948. The decree-holder Daga of that case started execution proceedings and in course of such execution proceedings the furniture, stock-in-trade and goodwill of the business of D. Mullick and Company of the plaintiff were sold as a going concern and were purchased by the defendant Ganesh Das Damani on 19-2-1949 for the sum of Rs. 8,100. The sale was held by the Sheriff. It is the plaintiff's allegation in the plaint that on 22-2-1949, Damani wrongfully put his padlocks on the doors of the said shop room and has continued to be in possession of such room since then. It is also his allegation in the plaint that the second defendant Usha Bolt and Nut Company is now in possession of the said shop room and is carrying on business there. In fact the second defendant Usha Bolt and Nut Company purchased on 23-6-1949 for valuable consideration the business of D. Mullick and Company with its goodwill stock-in-trade and furniture as a going concern.

( 3 ) THE learned trial Judge after hearing the parties and their evidence came to the conclusion that the sale in this case included the goodwill of the business of the plaintiff in the said shop room as a going concern, and that by sale of such goodwill the plaintiff also lost his monthly tenancy rights therein.

( 4 ) THE essential point for determination in this appeal is whether the goodwill in the present case includes the right of the plaintiff as a monthly tenant to occupy that said shop room. Before a decision can be reached on that point the primary enquiry must be what in fact was sold by the Sheriff. In other words was the "goodwill" in fact sold? For that purpose the relevant sale proclamation and orders of sale are material.

( 5 ) THE relevant sale proclamation dated 1-2-1949, settled on notice to the attorneys on record which is directed to be filed herewith with the records of this appeal shows what was sold. The material terms of the Sheriff's sale proclamation are:"to be peremptorily sold pursuant to the order of the High Court of Judicature at Fort William in Bengal in its Ordinary Original Civil Jurisdiction dated the tenth day of December one thousand nine hundred and forty eight made in execution of the decree dated 7-5-1948 and pursuant to the orders dated respectively 10-8-1948 and 9-9-194s made in Suit No. 610 of 1948 by the She-riff of Calcutta at No. 46/a, Netaji Subhas Road in the town of Calcutta by public auction on Saturday. 19-2-1949 at the hour of twelve o'clock noon the goodwill of the business of D. Mullick and Co. , of No. 46/a, Netaji Subhas Road and the right, title and interest, of the defendant Dulal Das Mullick the sole proprietor of D. Mullick and Co. , in the following moveable properties". Then the proclamation recited the items of the moveable properties. At the end of these recitals are stated the words "in one Jot as a going concern. "

( 6 ) THE proclamation expressly' states in clearest terms that what was being sold was the goodwill of the business of D. Mullick and Com- pany of No. 46/a, Netaji Subhas Road as a going concern in one lot.

( 7 ) THE order of Mr. Justice Majumdar of 9-9-1948 also says -"it is ordered that the Sherif

Click Here to Read the rest of this document