ISHAN CHANDRA BANIKYA Vs. MOOMRAJ KHAN

JUDGEMENT

(1.) This is an appeal from the judgment and decree of the Subordinate Judge affirming the decree of the Munsif. The appeal is by the plaintiffs and it arises out of a suit for arrears of rent claimed at the rate of Rs. 12-1-9 per year. The rent was at the rate of Rs. 3-8-0 per year in 1892, as it appears from a decree. In 1912 plaintiffs brought a suit against the predecessors of the defendants for enhancement of rent which ended in a decree passed on a compromise by which the rent was settled at the rate now claimed by the plaintiffs. Plaintiffs have also produced an ex parte decree of a subsequent date under which they were allowed to recover rent at that rate. The present suit for rent was brought in April, 1922, on the basis of the decree of 1912. The Subordinate Judge has held that the decree of 1912 was without jurisdiction and a nullity. He has also held that the subsequent ex parte decree being based on the previous decree on compromise which was a nullity, realisation of rent by the plaintiffs at the rate claimed is of no assistance to them. On these findings he allowed the plaintiffs a decree at the rate of Rs. 3-8-0 only as admitted by the defendants. On appeal by the plaintiffs it is contended on their behalf that the decision of the Subordinate Judg e is erroneous and that the plaintiffs are entitled to rent at the rate of Rs. 12 1-9 as settled by the decree of 1912.

(2.) The reason for which the decree of 1912 was held by the Subordinate Judge to be without jurisdiction and a nullity is that the Court in passing the decree in 1912 did not comply with the provisions of Section 147A of the Bengal Tenancy Act, as applicable to Eastern Bengal and Assam. That section runs thus:--"Notwithstanding anything contained in Section 373 of the C.P.C. if any suit between landlord and tenant as such is wholly or partly adjusted by agreement or compromise, the Court shall not pass a decree in accordance with such agreement or compromise unless it is satisfied for reasons to be recorded in writing, that the terms of such agreement or compromise are such that, if embodied in a contract, they could be enforced under this Act:

(3.) Provided that, in the case of a suit instituted by the landlord to enhance the rent, the enhancement, if any, agreed upon may be decreed if the Court be satisfied, for reasons to be recorded in writing, that such enhancement is fair and equitable and in accordance with the rules laid down in this Act for the guidance of Courts in increasing rents."