SUKUMAR SEN Vs. AMRITA LAL MUKHERJEE

JUDGEMENT

(1.) The Appellant and the Respondent No. 1 were co-sharer landlords of a patni tenure which was held under them at an annual rent of Rs. 4,522. The Appellant was the landlord to the extent of a twelve annas and odd gandas share and the Respondent No. 1 had the remaining three annas and odd gandas share.

(2.) In the Appellant's share the patni rent fell into arrears for the years 1348 to 1351 B.S. and, for recovery of the said arrear rents, the Appellant instituted Rent Suit No. 2 of 1945 in the Court of the Subordinate Judge, first Court, Howrah, framed in accordance with the provisions of Section 148A of the Bengal Tenancy Act, making the Respondent co-sharer landlord a party thereto. That suit was eventually decreed on February 5, 1946 and in execution of that decree the defaulting tenure was sold in Rent Execution Case No. 2 of 1948 on September 14, 1948 and it was duly purchased by the Appellant. This sale was duly confirmed on April 23, 1949 and the Appellant thus became the sole holder or patnidar of the said patni tenure while remaining its co-sharer landlord to the extent of its twelve annas and odd gandas share.

(3.) In the meantime, on April 5, 1949, the Respondent No. 1 had instituted Rent Suit No. 2 of 1949 for recovery of arrears of rent of the said patni tenure for the years 1352 to 1355 B.S. in her three annas and odd gandas share and, in that suit, she had impleaded several persons including Defendants Nos. 1 to 3 of that suit as tenants and also the Appellant, Defendant No. 8, as a co-sharer landlord, the latter's auction-purchase, referred to above, not having been confirmed till then and the patni or the suit tenure not having thus passed to it at that time. This sale, however, was confirmed, as I have already said before, shortly thereafter, namely, on September 23, 1949, but no further steps appear to have been taken by the Respondent No. 1 in her above suit upon this confirmation and the plaint remained as it originally was. The Respondent's rent suit was ultimately decreed on July 29, 1950, only against Defendants Nos. 1 to 3. No decree, however, was passed in the suit against the Appellant who was Defendant No. 8 therein, as already stated, although the decree against Defendants Nos. 1 to 3 was made in its presence. This decree was put into execution by the decree-holder (Respondent No. 1) in Rent Execution Case No. 8 of 1950 and, in that execution case, wherein the Appellant also was impleaded as a judgment-debtor, the defaulting patni was sought to be put up to sale by the Respondent No. 1. Thereupon, the Appellant filed an objection under Section 47 of the Code of Civil Procedure, objecting to the sale of the patni at the instance of the Respondent No. 1 in execution of her above decree, and the principal ground taken was that the patni tenure having already passed to the Appellant by reason of its auction-purchase, confirmed, as aforesaid, on September 23, 1949, that is, during the pendency of the Respondent's rent suit, and the latter not having made it (the Appellant) a party to the same as the tenant or holder of the suit patni and, in any event, the said suit having eventually been decreed only against the other Defendants Nos. 1 to 3, as stated above, and not against the Appellant, the defaulting patni tenure, which had passed to the latter long before the Respondent No. 1 obtained the decree in her rent suit, could not be affected by such decree or proceeded against or sold in execution thereof. This objection succeeded before the learned Subordinate Judge but, on appeal, it was overruled by the learned Additional District Judge and against this appellate decision the present appeal has been preferred by the Appellant.