BENOY KRISHNA DE Vs. ASHUTOSH DE

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent against a judgment and decree of Rama Prasad Mookerjee J. passed in Second Appeal No. 1451 of 1946 which was heard along with Second Appeal No. 1926 of the same year. The appellants, who were the plaintiffs in the suit out of which this appeal has arisen lost before the trial court, won in part before the court of first appeal, lost again in second appeal and have now preferred a further appeal under the Letters Patent.

(2.) Mr. Sen, who appears for the appellants, has given us an exhaustive history of the antecedent facts which led to the present litigation. Those, however, which lie behind the year 1940 are not strictly material for the purposes of this appeal. Suffice it to say, that there are four holdings which came in course of time to be held and owned both, as regards the landlord interest and the interest of the tenants, by a large number of persons. In the year 1940, two of them namely Benimadhab Choudhury and Kunja Behari Choudhury, who between them owned a 2 as 8 gds. share in the landlords' interest, brought a rent suit which was Suit No. 412 of that year. Among the defendants of that suit were the present plaintiffs who were defendants Nos. 3 to 5. One Ashutosh Dey who was pro forma defendant No. 13 in that suit and another person who was pro forma defendant No. 12 applied to be transferred to the category of the plaintiffs and their applications were allowed. On 18-11-1940, the plaintiffs of the suit, including the new co-plaintiffs, filed a petition by which they prayed that the names of the present appellants who, as I have already said, were defendants Nos. 3 to 5 in the suit, might be expunged, as they did not desire to prosecute the suit against those defendants. The specific prayer was that the plaintiffs might be permitted to proceed with the suit against the remaining defendants after omitting defendants Nos. 3 to 5. Actually, however, the names of the plaintiffs were not expunged and the suit was dismissed against them, whereas it was decreed ex parte against the remaining defendants.

(3.) On 5-10-1942, Ashutosh De, to whom I have already referred, put the decree into execution by Rent Execution Case No. 878 of 1942. It appears that on that application being made, 21-4-1943 was fixed as the date of the sale, but the appellants made an application whereupon the sale was adjourned to April 26 next and then again to April 27, when the application was dismissed for default. It is not necessary to refer to that application further. On 27-4-1043, the appellants made another application which they styled as an application under Order 21, Rule 58, Civil P. C. and by that application they stated to the court that the judgment-debtors had no saleable interest in the properties concerned inasmuch as they themselves had become the full 16 as owners as a result of a partition between the co-sharers. Another objection taken by the appellants was contained in para 7 of the application where it was stated that the decree put into execution was not a rent decree at all, inasmuch as it had not been obtained either by the total body of the landlords or against the total body of tenants and that, accordingly, the procedure laid down in Chapter 14 of the Bengal Tenancy Act was not applicable. That application came to be dealt with by the executing court on 12-6-1943, when it was dismissed. The two grounds upon which the court based the dismissal were that, there had been a prior application which, although not called an application under Order 21, Rule 58 was, in fact and in substance, an application under that rule and consequently any further remedy of the applicants lay by way of a suit and not by way of a second application. The other ground given by the executing court should be stated in the language of the court itself which was as follows :