MR K B DUTT Vs. GOSTHA BEHARY BEUIYA

JUDGEMENT

(1.) NO one appearing to oppose the Rule, we are of opinion that it should be made absolute and for the reason that the suit in which the decree was obtained by the petitioners was a suit to which the provisions of the Bengal Tenancy Act did not apply. The suit was not one brought by the present petitioners as co-sharer landlords under the provisions of Section 148A or Section 158B of the Bengal Tenancy Act and, in such circumstances, the decree which they obtained was a simple money-decree and, so far as we can ascertain from the materials before us, there is nothing to indicate that, in that decree, the petitioners invoked the application of the provisions of any section of the Tenancy Act. In our opinion, the present case is distinguishable from the case of Thakamani Dasi v. Mohendra Nath Dey Sarkar 10 C.L.J. 463 : 3 Ind. Cas. 389 on which the lower Courts relied, so that, even if we were prepared to follow the decision in that case, as to which it is not necessary for us in this case to express any opinion, it would not, in our opinion, be applicable to the facts of the present case. The result, therefore, is that we make the Rule absolute, set aside the orders of the lower Courts and direct that the execution do proceed according to law. As there has been no appearance on the part of the opposite party in this Court, we make no order as to the costs of this Rule; but in the lower Courts, the petitioners will be entitled to recover their costs from the opposite party.