MIDNAPORE ZAMINDARY CO LTD Vs. ABDUL ZALIL MIA

JUDGEMENT

(1.) This appeal is directed against two orders embodied in one judgment of the Subordinate Judge of Nadia which is dated 29 March 1932. The first order which is attacked is an order directing amendment of a rent decree and the second order challenged by this appeal is one refusing personal execution of the decree against the respondent as asked for by the decree- holders appellants.

(2.) The questions which fall for determination in this appeal depend on facts which are either admitted or have been proved in this case. They may be briefly stated: It appears that the Midnapur Zamindary Co. Ltd., now appellants, brought a rent suit in the year 1923 against four persons, namely, Abdul Jalil Mia, now respondent, Esmail Hossein Mia, a minor represented by his guardian ad litem Ainuddin and two other persons who were the darpatnidars under them. The rent suit was for arrears for the period 1327 to Pous kist of 1329 B.S. The defence to the suit was that the plaintiffs, the Zamindary Co. Ltd., had dispossessed the defendants from a portion of the darpatni and there should be entire suspension of rent. This defence was given effect to by the Subordinate Judge who tried the suit in the first instance and plaintiff's suit was dismissed. This decree of dismissal was affirmed by the District Judge on appeal. There was a further appeal to the High Court by the plaintiff company and during the pendency of the second appeal Ainuddin, the guardian of Ismail, died but no new guardian was appointed in his place. On 10 February 1928 the High Court decreed the appeal and sent back the case for determination of the extent of dispossession by the plaintiffs and for passing a decree in plaintiffs favour after allowing proportionate abatement of rent to the defendants on account of the dispossessed area. On remand Esmail was not represented by a guardian and a decree was passed in favour of the plaintiffs for Rs. 4,092 odd not only against the three defendants who were properly represented but also against Esmail Mia, who was not represented by a guardian ad litem. In execution of this decree the sale of the darpatni took place on 9 July 1931 and it was purchased by the plaintiffs company for Rs. 35,000. As the claim for rent was for Rs. 5,000 there was a surplus of Rs. 30,000 in favour of the judgment-debtors, the four defendants in the suit.

(3.) During the pendency of this suit before the Subordinate Judge after remand by the High Court, two other suits for rent of the same darpatni for a subsequent period had been instituted by the plaintiffs company. They were Rent Suits Nos. 7 of 1926 and 11 of 1930. These suits were jointly tried and were decreed on 31 March 1931. From the surplus sale proceeds of the sale in execution of the rent decree in Suit No. 3 of 1923 the entire claim of the Rent Suit No. 11 was satisfied and a substantial portion of the decree in Rent Suit No. 7 of 1926 was satisfied. The plaintiffs company have executed the decree for the balance in Rent Suit No. 7 of 1926 and have attached the personal properties of the respondent Abdul Jalil Mia who is one of the judgment-debtors in the suit. In order to understand the objection of the judgment-debtor Abdul Jalil Mia one fact has to be borne in mind and that is this: in the judgment of Rent Suit No. 7 it was directed that the tenure should be sold first in execution of the decree in accordance with a stipulation in the darpatni patta (Ex. 2) to that effect, but this clause was, omitted from the decree and an application was made for the amendment of the decree by bringing it into conformity with the Judgment, and the amendment of the decree has been made. The order allowing amendment, as has been already stated, has been attacked in this appeal and we will return to this hereafter. The main objection of the respondent judgment-debtor to this personal execution is that as according to the decree as amended the tenure must be sold in the first instance, and as the sale of three annas share of Esmail Mia is absolutely void as the sale was in pursuance of a decree in a suit in which he was not properly represented, three annas share of the tenure still remains unsold, and according to the decree no personal execution can issue against one judgment-debtor till the darpatni tenure in its entirety is sold. This objection, has prevailed with the learned Subordinate Judge below and he has allowed the objection and has directed that the tenure should be sold first and if any balance be left, then it could be executed personally against the judgment-debtor.