The main legal point established in the judgment is that the omission to serve notice to the co-sharer landlord under the Bengal Tenancy Act did not nullify or alter the character of the sale, as the co-sharer landlord had waived the benefit of the notice.

JUDGMENT

Mookerjee, J. - This is an appeal by the plaintiffs in a suit for recovery of arrears of rent. The defendants denied the relationship of landlord and tenant during the years in claim. They urged in substance that the title of the plaintiffs had been extinguished as the result of a sale held in execution of a decree passed in a suit instituted u/s 148-A of the Bengal Tenancy Act.

2. The Court of first instance gave effect to this contention and dismissed the suit. Upon appeal the decree of the primary Court has been affirmed by the District Judge. On second appeal it has been argued that the question of title of the plaintiffs is res judicata in view of a decree made on the 29th April, 1915, in a previous suit between the parties. This view has been rejected by both the Courts below. It is not necessary to examine in detail the scope of the earlier suit because we have arrived at the conclusion that the question now in controversy was not directly and substantially in issue in the previous litigation and was not finally decided therein. Consequently we have to consider the effect of the sale held on the 11th September, 1913, in execution of a decree for arrears of rent in a suit instituted u/s 148-A of the Bengal Tenancy Act.

3. It is not disputed that the interest claimed by the plaintiffs was originally held under two landlords Dighapatia and Tagore. On the 13th July, 1897, one Amarendra Nath Ghose purchased the tenancy at a sale held in execution of a decree obtained by Dighapatia against Panch Couri Ghose who was the recorded tenant. The right, title and interest of Panch Couri Ghose was subsequently purchased by Asutosh Ghose, the pro forma defendant in the present suit, and Arunoday Ghose, the predecessor-in-interest of the plaintiffs at a sale held in execution of a money-decree. The names of Asutosh Ghose and Arunoday Ghose do not appear however to have been recorded in the office of the landlord. The consequence was that Dighapatia brought a suit against One Behary Lal Roy who had purchased the tenancy at a sale in execution of a decree for arrears of rent on the 9th September, 1902. This suit was instituted u/s 148-A of the Bengal Tenancy Act. A decree was obtained in due course in the presence of Tagore who was made a party defendant. No notice, however, was served upon Tagore u/s 158-B of the Bengal Tenancy Act and yet the decree was executed. At the sale which followed Kishori Mohan Srimany under whom the contesting defendants claim, became the purchaser on the 11th September, 1913. We are invited to hold that the effect of this purchase by Kishori Mohan Srimany was to extinguigh the interest acquired by Asutosh Ghose and Arunoday Ghose on the 10th March, 1902. The plaintiffs contended in the Courts below that the decree obtained by Dighapatia in the suit instituted u/s 148-A could not operate as a decree for the entire rent according to the provisions of the Bengal Tenancy Act, inasmuch as the notice contemplated by Section 158-B was not served on Tagore. This contention has been negatived by the Courts below. The point consequently reduces to this : what is the effect of the omission of the co-sharer landlord who has instituted a suit u/s 148-A of the Bengal Tenancy Act to serve the notice contemplated by Sub-section 2 of Section 158-B. The appellants contend that the result is to destroy the character of the decree as a decree for arrears of the rent and to make it operative only as a decree for money so that at the sale which follows the right, title and interest of the person named as the judgment-debtor alone passes. In support of this view reliance has been placed upon the cases of Nanda Lal v. Kula Chand 15 C.W.N. 820, Sarif v. Tilattama [1917] 43 I.C. 3 and Ahamad Biswas v. Benoy Bhusan Gupta 23 C.W.N. 931.

4. To determine the question raised before us it is necessary to investigate the scope and object of Sub-section 2 of Section 158-B. That sub-section is in these terms: When one or more co-sharer l