JANKI RAI Vs. MAHARAJA BAHADUR RAM BAN BIJAYA PRASAD SINGH

JUDGEMENT

(1.) This is an appeal by the judgment-debtors against whom execution was taken. In the Munsif's Court they objected that the execution was barred by Art. 6 of Schedule 3, Bihar Tenancy Act, and this objection succeeded, the application to execute having been presented more that three years after the passing of the decree. On appeal the Subordinate Judge thought that limitation was governed not by Art. 6 of the said Schedule but by Art. 182 of the Schedule to the Limitation Act. He, on this view, considered that the question whether the execution was time barred would depend on whether there had been an intermediate application to execute the decree at a date which would save limitation under Art. 182. Against that order this appeal is presented, and it is contended that the limitation for this application to execute the decree is that prescribed by Art. 6, Schedule 3 to the Bihar Tenancy Act which cannot be extended beyond the period of three years in consequence of the presentation of an intermediate application to execute the decree.

(2.) It is necessary to state the particulars of the suit and of the decree passed. The plaintiff, who is the sixteen annas proprietor of the estate, instituted a suit claiming the sixteen annas rents of two tenures for four years. These tenures are those recorded in khewat Nos. 2 and 4 of the record of rights, khewat No. 2 bearing an annual rent of about Rs. 47 and khewat No. 4 the annual rent of Rs. 69. The persons interested in khewat No. 2 were not identical with those interested in khewat No. 4, for the holders of khewat No. 2 were defendants 1 to 12 of the suit and the holders of khewat No. 4 were defendants 1 to 9 only. There was also a claim in respect of some jagir and balagan lands. The suit was defended and an objection taken on the ground of multifariousness.

(3.) By compromise between the, parties it was settled that the suit be dismissed as regards the jagir and other miscellaneous items claimed but be decreed separately in respect of each of the two khewats with the result that the decree- holder was given a decree for Rs. 204-4-6 against the defendants 1 to 12 in respect of khewat No. 2 and another decree for Rs. 309-11-9 against defendants 1 to 9 in respect of khewat No. 4. The Munsif thought that the judgment creditor should be deemed to hold two separate decrees, each of them for amounts less than Rs. 500, so that Art. 6 was applicable. The Subordinate Judge thought that the decrees were money decrees and not rent decrees and also that they are to be treated as a single decree. In my opinion, the Subordinate Judge was in error in both these points. He has drawn a wrong inference from Hridoy Nath Das v. Krishna Prasad (1907) 84 Cal 298, the true effect of which decision can best be gathered by reading it in connexion with subsequent decisions of the same High Court and of the Privy Council in Dhirendra Nath V/s. Nischintapore Co. AIR (1918) Cal 929 and Prafulla Nath V/s. Satya Bhusan AIR (1929) PC 171, respectively. The case in Hridoy Nath Das V/s. Krishna Prasad (1907) 84 Cal 298 decided this, that if a single decree is obtained against more tenancies than one, and if those tenancies are put up to sale in execution of such a decree, the sale will not carry the special consequences which the Tenancy Act attaches to the sale of a tenancy in execution of a decree for its own arrears.