SAYED MD HOSSAIN Vs. BINAPANI DASI

JUDGEMENT

(1.) This appeal is from an order passed by the Subordinate Judge, Birbhum, in execution proceedings.

(2.) The facts which need be stated for the purposes of this appeal briefly are these: There was a tenure called the Khanpur estate, which was held by the judgment-debtors. An application was made under Section 93 of the Bengal Tenancy Act for the appointment of a Common Manager. The court, acting under the provisions of Section 94 of the Bengal Tenancy Act, directed the parties to appoint their own Common Manager. They failed to do so and the court in accordance with the provisions of Section 95 of the aforesaid Act appointed a Common Manager. The patnidar defaulted in payment of rent and the darpatnidar Binapani Dasi paid it. Then she brought a suit against the Common Manager and the owners of the Khanpur estate for the realisation of the dues and a declaration that they formed a charge on the property. The Common Manager alone appeared and contested the suit and the other owners of the Khanpur estate' did not appear.. A compromise petition was filed by the Common Manager on his behalf only and the suit was decreed in terms of that compromise as against the Common Manager who was Defendant No. 1. The owners of the patni not having appeared another decree was passed against them ex parte. It will now be necessary to state the terms of these decrees which are somewhat peculiar. The Common Manager was directed to pay the amount in eleven annual instalments and in default of payment of one instalment it was directed that the property could be sold in execution of the decree on compromise. So far as the owners of the patni, were concerned, the ex parte decree directed them to pay the entire decretal amount within six months. The decree against the owners was made final on February 17, 1940. The decree-holder then applied for execution of the decree on January 17, 1948. by way of a tabular statement against the owners of the tenure only and in the tabular statement she stated that the decree to be executed was the final decree passed on February 17, 1940. Now, that decree was the decree passed against the owners of the patni. There was no final decree passed against the Common Manager as he was given eleven years within which to pay. The judgment-debtors Nos. 2 to 9 are mentioned in the tabular statement as the persons against whom the execution is sought thereby excluding the Common. Manager. Thus it is abundantly clear that execution was sought not against the Common Manager but against the owners of the tenure and that it was sought in respect of the final decree passed against the owners of the tenure and not against any decree passed against the Common Manager.

(3.) The judgment-debtors Nos. 2 to 9 objected to the execution and their objection inter alia was that execution was barred by limitation. The court held that it was not so barred. Hence this appeal by the judgment-debtors.