DHIRENDRA NATH GHOSE Vs. CHARUSHASHI DEBYA

JUDGEMENT

(1.) This is an appeal by the plaintiffs under Section 15 of the Letters Patent from a judgment of Mr. Justice Duval. The suit was one for rent and the contention of the tenant was that he was only liable to pay rent at the rate of Rs. 30-10-8 gandas whereas the landlord claimed rent at the rate of Rs. 39. Before I state the questions that arise in this appeal it is necessary to state a few facts. On the 15 June 1914 proceedings were started by the landlord for enhancement of rent under Section 105 of the Bengal Tenancy Act. The judgment in that case was delivered on the 24 December 1915 fixing the rate of rent at Rs. 39 in accordance with an entry in the Record of Rights. In the meantime subsequent to the institution of the proceedings under Section 105 and whilst these were pending the landlord commenced a suit for rent against the predecessor-in-interest of the present respondent, Beni Kanta Banerjee. The decree was passed in that suit on the 25 August 1915 on the basis of a rental of Rs. 34- 10-8 gandas. The holding was sold in execution of the decree sometime in August 1915 and the sale was confirmed on the 30 September 1915, the purchaser being Dinesh Chandra Chatterjee transferred his interest to the present respondent.

(2.) Three points were urged before us in this appeal against the judgment of the learned Judge who held that the respondent was not bound by the proceedings under Section 105. The first point is that the sale is merely a devolution and that the provisions of Order XXII, Rule 10 of the C.P.C., apply to the case; and secondly, it was contended that in any case the proceedings under Section 105 were contentions and operated as lis pendens and that accordingly, the respondent was bound by the proceedings under the provisions of Section 52 of the Transfer of Property Act. Thirdly, it was contended that by virtue of the provisions of Section 150 of the Bengal Tenancy Act the plea taken by the respondent was not open to him as he did not deposit the rent which he had admitted to be due, namely, Rs. 34-10-8 gandas.

(3.) So far as the first point is concerned, I have endeavoured to understand the argument that was addressed to us based upon the provisions of Order XXII, Rule 10. But I have been unable to see how that rule of Order XXII has any application whatsoever and the first point accordingly fails.