G.N.DAS,J. - (1.) THIS is an appeal by defendant 1 Sree Sree Radha Ballav Jiu Thakur by bis shebait Uday Chand Mahatab, Maharajadhiraj Bahadur of Burdwan, against a judgment of P.N. Mookerjee J.
(2.) THE facts which led up to this litigation may be stated as follows. The plaintiffs claimed to be under tenants in respect of a putni mehal which was held by the 'pro forma' defendants as putnidars under the Zemindar, viz., the debottar estate of the Maharaja of Burdwan. In 1934 a suit for rent for the years 1337 to 1340 B.S. was instituted by the Zemindar against the then holders of the putni in question. Plaintiff 1 of the Rent Suit was describod as the deity Sree Sree Radha Ballav Jiu Thakur by the shebait Maharaja of Burdwan represented by the Manager, Court of Wards, and plaintiff 2 was described as the said deity represented by the Maharaja of Burdwan simpliciter. The suit was decreed in favour of plaintiff 1. It was dismissed as against plaintiff 2. The decree which was drawn up in the suit stated that the rents for the years 1337 to 1340 B.S. aggregating the sum of Rs. 4085 -2 -1 were decreed against all the defendants and a sum of Rs. 3599 -9 -8 was decreed against defendants 10 and 11 for the period 1338 to 1340 B.S. There was a decree for costs to the tune of Rs. 528 -10 -6 against all the defendants. This decree was passed on 5 -12 -1934. It was executed as Rent Execution Case No. 13 of 1938 by plaintiff 1 as aforesaid and the execution prayed for was by a sale of the putni in arrears, the sum claimed in the execution petition being the entire sum decreed, namely, Rs. 4085 -2 -1 plus costs and interests. In the execution proceeding various objections were raised by the different judgment -debtors. One of the objections taken by judgment -debtor Bhudar Chandra Mukherjee was that the decree could not be executed as a rent decree. This objection was overruled in part by the learned trial Judge. The order is dated 25 -7 -1938, Ex. K(1). By this order the Court held that the claim for rent for the year 1337 could be executed only as a money decree, but the claim for the years 1338 to 1340 B.S. together with costs could be executed as a rent decree. The Court specifically held that a sum of Rs. 3599 -9 -6 together with costs would be executable as a rent decree. This order was affirmed on appeal, Ex. K(3).
(3.) THE other set of objections which was filed by some other judgment -debtors related to the absence of Satkori Roy and Jogendranath seems (sic) unrecorded transferees from the recorded tenants as parties defendants in the rent suit. It was contended that as such the decree in question could not be executed as a rent decree, because Satkari Roy and Jogendra Nath Banerjee were not impleaded as parties defendants in the rent suit. This objection wasoverruled by the learned Judge. Thereafter Kent Execution Case No. 13 of 1938 was allowed to be dismissed for default on 10 -9 -1943, and a fresh execution case was started by plaintiff 1 of the rent suit being Rent Execution Case No. 47 of 1946 praying for execution only in regard to the claim for the years 1338 to 1340 B.S., namely, a sum of Rs. 3599 -9 -6 together with costs. The prayer was made for realisation of the sum by a sale of the putni in arrears. Meanwhile, in March 1940, the present suit was instituted by the under -tenants praying for a declaration that the decree that was executed in Rent Execution Case No. 13 of 1938 was not a rent decree in the proper sense of the word and for an injunction restraining the decree -holder, defendant 1, from proceeding with the execution. This suit was contested by the defendant 1, i.e., the present appellant. The learned trial judge decreed the plaintiffs' suit being of opinion that the decree under execution was not a rent decree. An appeal was taken by the present appellant to the lower appellate Court which was dismissed. On a second appeal being taken to this Court the judgment and decree of the lower appellate Court were set aside and the case was remanded to the lower appellate Court for a re -hearing of the appeal. As a result of the hearing after remand the lower appellate Court reversed the judgment of the learned trial Judge and dismissed the plaintiffs' suit. Against that judgment and decree the plaintiffs preferred a second appeal to this Court. This appeal was heard by P.N. Mookerjee J. and was allowed and the plaintiffs' suit was decreed with costs in this Court and in the Court below. It is against this judgment that the present appeal has been taken. P.N. Mookerjee J. allowed the appeal preferred before this Court by the plaintiffs solely on the ground that the decree could not be split up so far as the costs are concerned and as such the execution could not be regarded as a rent execution. On all other points the learned Judge agreed with the lower appellate Court.;