RAMDIN OJHA Vs. JODHAN PROSAD SINGH

JUDGEMENT

(1.) This appeal arises as follows. The respondent is a four anna co-sharer in a certain estate : and brought a rent suit against appellant No. 1 joining his co-sharers as defendants and claiming 16 annas of the rent due. The suit was decreed against the tenant defendants and it was ordered that the 4 anna share of the present respondent should be shown, and that he should get the entire costs of the suit. On appeal this decision was upheld by the Sub-Judge, and it was added to make it more clear it is farther ordered that a decree for the entire 16 annas rent...be passed jointly in favour of the plaintiff as also in favour of the pro forma defendants, the maliks, that out of that the plaintiff do get to the extent of 4 annas and the other maliks the pro forma defendants do get the remaining 12 annas." The decree was drawn up accordingly, and execution was taken out only for a 4 annas share.

(2.) The judgment-debtor thereupon made an objection under Section 214 Civil Procedure Code on the ground that the property attached and advertised for sale was non-transferable and that the decree-holder as a fractional owner could not bring it to sale. The Munsif held that the judgment-debtor failed to prove that the holding was not transferable by local custom or usage, and that whether this was so or not the holding would pass, under Section 65 of the Bengal Tenancy Act as the decree was for the entire holding though execution had been taken out only for a part. On appeal to the District Judge this decision was upheld, the Court holding that the holding was not proved to be not saleable by custom, and that the decree being for the whole rent due was a rent decree and not a money decree and that Section 65 consequently applied.

(3.) Under these circumstances we have to decide on second appeal what is the effect of the decree that has to be executed. Is it a rent decree under which the holding can be brought to sale, or is it merely a money decree? If it is a money decree can it be executed under the present proceedings? No question has been raised before us that the decree in the appeal is the decree that is to be executed. It is, therefore, the meaning of this decree that is to be ascertained. In the first place, however, we have to observe that the original decree was justified by authority, namely, Tara Chunder Banerjee V/s. Ameer Mundul 22 W.R. 394 and Jadoo Skat V/s. Kadnmbinee Dassee 7 C. 150 : 8 C.L.R. 445 decided before, and Prem Chand Nuskur V/s. Mokshoda Debi 14 C. 201 decided after the passing of the Bengal Tenancy Act. In Pramada Nath Roy V/s. Ramani Kanta Roy 85 C. 331 (P.C.) : 7 C.L.J. 139 : 12 C.W.N. 249 : 10 Bom. L.R. 66 : 18 M.L.J. 43 : 3 M.L.T. 151 : 35 I.A. 73 also, where a co-sharer sued patnidars under the Bengal Tenancy Act for the whole rent of the tenure, joining his co-sharers as defendants it was held by the Privy Council that it was a general rule, not derived from the Bengal Tenancy Act but from the general principles of legal procedure and applicable to cases under the Act, that "a sharer, whose co-sharers refuse to join him as plaintiffs, can bring them into the suit as defendants, and sue for the whole rent of the tenure." The principle has now been embodied in Section 145A of the Bengal Tenancy Amendment Act of 1907 in such a way as to suggest rather than to exclude the idea that it was already applicable,