NIHARBALA DEBI Vs. SHASHADHAR RAY CHAUDHURI

JUDGEMENT

(1.) This appeal has arisen out of an order passed by the District Judge of Burdwan, affirming, on appeal, an order made by the Munsif, First Court, by which the objection of the respondent to the execution of a decree for rent by sale of the defaulting tenure was upheld. The decree- holder has preferred this appeal.

(2.) The appellant is a cosharer landlord. In 1920 one of the cosharers of the appellant instituted a suit for rent on a plaint framed in accordance with the provisions of Section 148-A, Ben. Ten. Act. The appellant was made a party to that suit. The rent claimed was for a period ending with the year 1326 B. S. The appellant did not appear in the suit and the cosharer, who had instituted it, obtained a decree for his share of the rent, in accordance with the provisions of the said section; in execution of the decree that was obtained, the appellant's cosharer put up the tenure to sale and it was purchased by the respondent. The respondent thereafter made an application to set aside the sale upon the ground that what had passed to him under the sale was the right, title and interest of the judgment-debtor tenant and that, although the sale purported to be one in execution of a decree for rent, in point of fact it had not that character. The application made, as aforesaid, by the respondent was rejected. Before the tenure was put up to sale, a notice appears to have been served upon the appellant in accordance with the provisions of Section 158-B, sub-8. (2), Ben. Ten. Act. The appellant however did not appear in the proceedings, with the result that the sale took place as stated above. Thereafter the appellant instituted another suit for rent for the years 1327 to 1330 B. S. This was a period subsequent to the one for which the previous suit for rent had been instituted and anterior to the date of the respondent's purchase, She obtained a decree and then put the decree into execution. The respondent objected that the decree could not be executed as against the tenure which was now in his hands. It is this objection that has been upheld by the two Courts below.

(3.) The Courts below have held that, in point of fact, two of the cosharer landlords had been omitted from the suit which was instituted by the appellant's cosharer in 1920 and that, although the plaint in that suit purported to be one framed in accordance with the provisions of Section 148 A, Ben. Ten. Act, the decree that was obtained in that suit would not in law have the effect of a rent decree. It has also been found by both the Courts below that the appellant was aware of the fact that the said two cosharers had been omitted from the suit. These findings have not been challenged before us and indeed, on the materials upon which they have been come to by the Courts below, they cannot possibly be challenged. The view upon which the Court below have proceeded is expressed by the learned District Judge in these words: The appellant is estopped from questioning the validity of the rent sale as a rent sale she having been a party to the decree and to the execution thereof as a rent decree, having got notices under Section 158-B, Ben, Ten. Act.