MANMATHA NATH MULLICK Vs. SHEIKH HEDAIT ALI

JUDGEMENT

(1.) This is an appeal from a judgment and decree dated 21 December 1928 of the High Court of Judicature at Patna, which varied a judgment and decree, dated 30 June 1927, of the Subordinate Judge of Cuttack. The facts of the case which are not in dispute may be shortly stated as follows : One Nani Mohan Banerji was an owner of two taluks, which may be shortly described as Narendrapur and Krishnapur. These properties were mortgaged for a total sum of Rs. 1,49,000 and the appellant also held two postponed mortgages over the same properties for a sum of Rs. 35,500. On 9 December 1914 Banerji executed a lease of his two taluks in favour of defendant 1. Under this lease the lessee agreed to pay the lessor a yearly rent and, in addition, the Government revenue cesses and other public demands. The lease also contains the provision that in case of any breach of the covenants to be observed by the lessee he should be liable in damages.

(2.) In 1917 the first mortgagees brought a suit to enforce their claims under the mortgages they held. As the result the two taluks were sold in execution to the appellant in 1924. The appellant purchased Narendrapur on 26 January 1924, and Krishnapur on 17 May 1924. The lessee continued in possession of the two taluks until the expiry of his lease on 9 September 1924, when he gave up possession. He has since died and his representatives are the respondents, who have not appeared.

(3.) During the currency of the lease the obligations of the lessee were duly performed until 1923, when he failed to pay the revenue instalment due in November in respect of taluk Narendrapur. He similarly failed to pay the revenue and cases due in April 1924, on the said taluk, and also the instalment of revenue and lesses due in April 1924, in respect of taluk Krishnapur. In order to save the taluks from sale the appellant paid these instalments and certain penalties to the Collector in respect of their not having been paid at the due dates. Although in the suit these penalties are sued for, Mr. DeGruyther in the course of the hearing stated that in respect of the small amount involved he limited his claim to the installments actually paid.