MRS ALICE MAUD Vs. JCGALSTAUN

JUDGEMENT

(1.) The facts of the case out of which this rule has arisen are these : The opposite party one J.C. Galstaun brought a suit in 1923 against the present petitioners and certain other persons with regard to a certain house No. 229, Lower Circular Iioad. The present petitioners who are Defendants Nos. 1 and 2, alone contested the suit. The petitioners wore the sub-tenants of one Mussa Ariff Bham, who it was alleged, was the tenant of J.C. Galstaun. The suit was heard and was decreed by Mr. Mohendra Nafch Mukhuti, Subordinate Judge of Alipur, on the 29th June 1925. Almost immediately after the decision of the suit this officer was transferred and the decree when drawn up was signed by another Judge Mr. Asu-tosh Pal. who succeeded Mr. Mukhuti. The material portion of the judgment of Mr. Mukhuti which forms the concluding portion of the learned Judge's judgment with which we are now concerned in the present Rule is as follows: Ordered accordingly that the suit be decreed in part with costs on contest against Defendants Nos. 1 and 2 and ex parte against Defendants Nos. 3 and 4. The defendants are directed to make over to the plaintiff vacant possession of the disputed promises in fifteen days from this date; on default, the plaintiff will be entitled to recover vacant possession of the same turning out all the defendant and all those who claim through him from the premises, and also to recover from the Defendants Nos. 1 and 2 the sum of Rs. 4,283-13-4 as damages for the period before suit and at Bs. 334-8-0 par month from the date of the institution of the suit to 31 March 1924, and thereafter at Rs. 675 per month until recovery of possession by the plaintiff s. On the plaintiff's recovery of possession the total amount to which he is entitled will be calculated and plaintiff pay the necessary deficit Court-fee. Amounts awarded as costs or damages will bear interest at 6 per cent, per annum.

(2.) This decree was transmitted to the High Court for execution on the 9 July 1925, and then the plaintiff's asked the High Court to attach certain moveable properties of the judgment-debtor with a view to executing the decree.

(3.) Defendants Nos. 1 and 2 had meanwhile made over vacant possession to the plaintiff before the expiry of fifteen days allowed by the decree and they raised the objection that as they had given over vacant possession it was, therefore, no longer necessary that there would be any final decree as to damages. They, there fore, contended that they were not liable for the damages as they bad given over possession within fifteen days and on these allegations they asked the Subordinate Judge to recall the certificate which he had sent to the High Court. The learned Subordinate Judge refused to recall the certificate, and on the 14 August 1925, the Subordinate Judge ordered what is described a final decree which was a decree for the amount of damages, etc., to which the Defendants Nos. 1 and 2 are liable to be drawn up. Defendants Nos. 1 and 2 had appealed to the High Court on the 9 November 1925, against the preliminary decree so far as the question of costs was concerned.