RAJ KUMAR SEN Vs. ANNODA CHARAN SEN

JUDGEMENT

(1.) The case out of which this appeal arises was a suit; brought by the plaintiff against the defendant for rent under the Bengal Tenancy Act. That suit came on for hearing before the Munsif, and the defendant summoned the plaintiff to appear as his witness. The plaintiff was examined as the defendant s witness and the Munsif allowed him Rs. 36 as his expenses in the matter of giving his evidence in that case. The plaintiff executed that order at once and realized that amount.

(2.) The Munsif decreed the plaintiff s claim with costs. The Rs. 36 did not form any part of the substantive decree, both because it had been already paid, and because it was part of the defendant s costs, but it was scheduled as an item in the defendant s costs.

(3.) In the appeal before the Subordinate Judge, the defendant took exception both to the decree for rent and to this order for compensation as it has been called. The Subordinate Judge dismissed the defendant s appeal in the rent suit, but passed an order that the plaintiff must re-pay to the defendant the Rs. 36 which he had recovered from him as above stated. This was on the 10th of April 1906. In September 1908; the defendant applied for execution of that order and a notice under Section 248 of the Civil Procedure Code of 1882, was issued. It appears that the defendant realized Rs. 5 out of the Rs. 36 but failed to obtain the rest.