HARI MOHAN DALAL Vs. PURENDRA NATH NAG CHOUDHURY

JUDGEMENT

(1.) This is an appeal from an order of the Third Subordinate Judge of Alipur dated the 6 of December 1924. For an understanding of the matters that arise in the appeal and the Rule it is necessary to state a few facts. One Raj Mohan Nag Choudhury was the owner of certain property. He died leaving a son, Chandra Nath Nag Choudhury, who had married a lady named Nisadini. Chandra Nath had six sons, one of whom named Bhupendra Nath Nag Choudhury was dead at the time of the events hereinafter referred to and his interest has passed to his son Chandi Charan Nag Choudhury. After the death of Raj Mohan who had left all his properties by Will to his grandsons, the sons of Chandra Nath, a suit was commenced for partition of the estate of Raj Mohan and for administration thereof and a Receiver was appointed. In order to clear off the debts of Raj Mohan's estate it was necessary to raise money in some way or other and the Receiver applied for and obtained an order for the sale of a portion of Raj Mohan's estate for the liquidation of his debts. Against that order an appeal was presented to this Court and was numbered 385 of 1913 and this Court decided that it was inadvisable to sell the two mehals in accordance with the order of the Court below and that it would be better that a patni lease should be created of these two mehals and of another mehal and that out of the selami to be paid by the patnidars the debts of Raj Mohan's estate should be paid off.... The patni was put up to auction to the highest bidder and eventually Surendra Nath Nag, one of the grandsons of Raj Mohan Nag, and Nisadini Dad, the widow of Chandra Nath, were the highest bidders far the patni. The patni was to be granted at an annual rent of Rs. 7,000 and at a selami. I should mention that several strangers competed for the patni amongst others one Harendra Nath Ballav, Surendra Nath Nag Choudhury and Nisadini Dasi being the highest bidders. A patni was granted to thorn at a patni rent of Rs. 7,000 and a selami of Rs. 1,82,000. Surendra and Nisadini had no money to pay the selami and accordingly they mortgaged the patni to the applicant before us, Hari Mohan Dalai, in order to pay the selami. The mortgage included not merely the patni interest but also the zamindari interest of Surendra, Nisidini and Upendra. Subsequently, Nisadini and Surendra failed to pay the patni rent and a suit was brought for the rent and a decree was obtained. In execution of the decree the decree-holders sought to bring the patni to sale and it is against the order for sale of the patni that this appeal has been preferred by Hari Mohan Dalai, the mortgagee of the patni interest and of a portion of the zemindari interest. He applied under the provisions of Section 47 of the Civil P.C., to the lower Court asking for an order that the execution was legally untenable and that the property should be sold subject to the liabilities for his mortgage which amounted to a sum of over 3 lacs of rupees and in respect of which he has obtained a mortgage-decree. The Court below dismissed the mortgagee's application on various grounds which are stated in the various orders, which appear in the paper book and accordingly this appeal has been preferred.

(2.) At the outset a preliminary objection was taken on behalf of the respondents that no appeal lay The objection was based on the ground that the present appellant before us, the mortgagee, was not a party to the rent suit which had been brought by the zamindars for the patni rent and that he was not a representative within the meaning of that word and that accordingly he was not entitled to appeal to this Court. There is also a rule which was obtained by the appellant before us having regard to the difficulty that was felt on this point. We think, however, that this objection must fail because we think that within the meaning of the decisions of this Court the appellant is a representative and, therefore, comes within the scope of the provisions of Section 47 of the Civil P.C. In the case of Ishan Chunder Sirkar V/s. Beni Madhub Sirkar [1897] 24 Cal. 62, the matter was discussed by a Full Bench of this Court and according to the judgment of that Court a representative is a person who is bound by the decree and the learned Judges further said that a person affected by the decree was really a representative within the meaning of the term as used in Section 47 and there is another case which has some bearing on the point, namely, the case of Srimati Nissa Bibi V/s. Radha Kishore Manikya 11 C.W.N. 312. It was held in that case that the person to whom a transferable occupancy holding was mortgaged before its sale in execution of a rent decree was a representative of the judgment-debtor within the meaning of Section 244 of the Civil P.C. We think, therefore, that the preliminary objection must fail and that an appeal is permissible to this Court.

(3.) Now various questions have been raised before us in this appeal. It is not necessary, we think, to deal with all of them because we think that two points that have been urged before us really dispose of the matter. Firstly, it has been urged before us that this is not a rent- decree but is merely a money-decree. As against this we were referred to the provisions of Section 148-A of the Bengal Tenancy Act and it was argued on behalf of the opposite parties that having regard to the words of that section and the decisions of this Court the decree passed was a rent-decree and it could be executed as such. Section 148-A provides that where a cosharer landlord who has instituted a suit to recover the rent due to all the cosharer landlords in respect of an entire tenure or holding and has made all the remaining cosharers parties, defendants, to the suit is unable to ascertain what rent is due for the whole tenure or holding or whether the rent due to the other cosharer landlords has been paid or not owing to the refusal or neglect of the tenant or of the cosharer landlords, defendants to the suit, to furnish him with correct information, such plaintiff cosharer landlord is entitled to proceed with the suit for his share only of the rent. The vakil for the opposite parties referred to us the plaint in the suit and to the allegations there made as showing that the suit fell within the exact terms of Section 148-A and we were referred to various decisions of this Court in support of this proposition, notably to Nunda Lal Choudhury V/s. Kala Chand Choudhary 15 C.W.N. 820, Brohmandan Nath Deb Sirkar V/s. Hem Chandra Mitter 18 C.W.N. 1016, Baikuntha Nath Sen V/s. Ramapati Chatterjee [1918] 27 Cri.L.J. 101, Profulla Chandra Ghose V/s. Baburam Mandal [1922] 34 Cri.L.J. 462 and Jagabandhu Nandi V/s. Abdul Hamid Mea . In all these cases, in some of which the suits were held to fall within the provisions of Section 148-A and in others not, what were the necessary allegations in a suit of this nature were discussed and considered, and it seems to us that for a suit to fall under the provisions of Section 148-A it must be a suit which is to recover the whole of the rent due. It is true that some of the rent may turn out not to be actually due as it may have been paid to some of the cosharers. But it certainly seems to be of the essence of a suit under Section 148-A that either the whole rent is due or else the plaintiffs are unable to ascertain whether or not the whole of the rent is due. Now it seems to us that the present case does not fall under any such principle. From the facts which I have already stated it appears that some of the zamindars were themselves patnidars and, consequently, it was clear that no rent in respect of the patni was due to those zamindars who occupied the dual positions of zamindars and patnidars as well. Consequently the suit was not and could not be to the knowledge of the plaintiff in the suit--a suit for the whole rent in respect of a tenure or holding--and for these reasons we think that the suit does not fall under the circumstances of this case, which are, of course, special under the provisions of Section 148-A; that is to say, it follows that the decree which has been passed is not a rent decree within the meaning of Section 148-A but merely a money-decree which can only be executed as such.