MIHIR BOSE Vs. JOBEDA KHATUN

JUDGEMENT

(1.) THE principal question of law which arises for my determination in this appeal is whether some of the decree-holders dan adjust a decree for eviction by entering into a compromise with the judgment-debtor where a joint decree for eviction has been passed in favour of several decree-holders. It is an admitted fact that appellant Mihir Bose was a tenant under the seven respondents of this appeal in respect of certain premises bearing No. 10, Syed Ameer Ali Avenue, Calcutta. A suit for eviction was brought against the appellant jointly by the seven respondents, and the suit was decreed ex parte. The decree for possession which was passed in favour of the decree-holders was put to execution on behalf of all the decree-holders by their constituted attorney, one Sk. Abdur Rahaman. The execution petition was filed on 21st September, 1953. Several objections were filed on behalf of the judgment-debtor against the execution of the decree. I am not concerned with some of those objections. I am concerned with the objection which was filed by the judgment-debtor in miscellaneous judicial case No. 73 of 1954 That objection was to the effect that two of the decree-holders who are proforma respondents Nos. 6 and 7 of this appeal had adjusted the decree with the judgment-debtor and allowed the judgment-debtor to continue as a tenant in occupation and they are receiving rent from him. It was, therefore, contended that the remaining decree-holders were not entitled to get khas possession of the disputed premises by evicting the appellant. This objection was allowed by the executing court in view of the fact that the adjustment alleged by the judgment-debtor had been recorded as certified.

(2.) THE decree-holders who were not parties to the alleged adjustment preferred an appeal from the order passed by the executing court, and the lower appellate court allowed the appeal and directed that the execution of the decree would proceed in so far as it related to delivery of possession of the entire premises. This second miscellaneous appeal has been preferred by the judgment-debtor from the order passed by the lower appellate court.

(3.) MR. Mitra appearing on behalf of the judgment-debtor appellant submitted two points for my consideration. In the first place, he argued that although the decree was admittedly one for khas possession of the disputed premises by all the decree-holders, two of them who are proforma respondents Nos. 6 and 7 of this appeal and who have admittedly got 5 annas share in the disputed premises have entered into an adjustment with the judgment debtor and they have recognised him as a tenant and are not agreeable to his eviction. Mr. Mitra submitted that in these circumstances, the decree for khas possession cannot be executed, and at the utmost, the remaining five decree-holders who were not parties to the adjustment, may be given possession of the disputed premises. This contention of Mr. Mitra does not appear to me to be sound in law. 0. XXI, r. 15 of the Code of Civil Procedure enables any one of several decree-holders to execute the whole decree, where it has been passed jointly in favour of more persons than one. There can, therefore, be no question that the entire decree can be executed at the instance of the 5 principal respondents of this appeal, Mr. Mitra contended that the adjustment entered into by two of the decree-holders owning a 5 annas share in the disputed premises is a bar to the execution of the entire decree.