RAMANAND SINGH Vs. DAMODAR PRASAD

JUDGEMENT

(1.) THE decree which is sought to be executed was passed on 27 November, 1930, against two persons, namely, Ramkishun Singh and Ramanand Singh. When the respondent proceeded to execute the decree an objection was taken by Ramanand Singh, one of the judgment-debtors, that Ramkishun Singh had died before the passing of the decree and therefore the whole decree was a nullity. THE executing Court held that the decree was a nullity so far as Ramanand Singh is concerned but it was executable against Ramkishun Singh. It may be mentioned here that the decree in question was passed in a rent suit in which there was also a prayer for enhancement of rent suit. THE point, which is now taken in second appeal (the lower Appellate Court having upheld the decision of the first Court on all the points) is that the decree is a nullity on two grounds (1) because the decree for enhancement of rent is a nullity and the two decrees are inseparable; and (2) because the suit was brought as a rent suit and no rent decree could be passed in the absence of one of the tenants. Reliance is also placed in this connection on Chandra Kumar Guha V/s. Elahi Buksha 92 Ind. Cas. 616 92 Ind. Cas. 616 : A.I.R. 1926 Cal 667.

(2.) NOW, it appears to me that the decree for enhancement is separable from the decree for rent. Merely because the two claims were joined in one suit it does not necessarily follow that if the decree for enhancement cannot be enforced, the decree for rent also Cannot be enforced. As regards the second contention I agree that the decree is not executable against the appellant as a rent decree, but I do not see why it should not be executable as a money decree. It was held in Beradar Singh V/s. Bacha Mahto 54 Ind. Cas. 39 : 5 P.L.J. 32 : (1920) Pa. 9 : I.P.L.T. 55 : 2 U.P.L.R. (Pat.) 4 that a decree obtained against one of several tenants would be a money decree and it was held in Jagan Mohan Sarkar V/s. Brojendra Kumar Chakrabarti 90 Ind. Cas. 211 : 53 c. 197 : 29 C.W.N. 1000 : 52 C.L.J. 232 : A.I.R. 1925 Cal. 1056 that a suit for rent is maintainable against some of the heirs of a deceased tenant without bringing all the heirs and successors-in-interest on the record. The same principle would in my opinion apply where a suit is brought against one out of several tenants. As to the case of Chandra Kumar Duha V/s. Blahi Buksha 92 Ind. Cas. 616 : 92 Ind. Cas. 616 : A.I.R 1926 Cal. 667 it appears that the question of abatement was raised there in second appeal in circumstances which are materially different from those of the present case end it was held that if the entire appeal was not held to have abated, there would be two inconsistent decrees. There can be no question of there being two inconsistent decrees in the present case. I think, therefore, that the view taken by the courts below is right and the decree is executable against the appellant but it is executable only as a money decree and not as a rent decree. The appeal is, therefore, dismissed with costs.