BANESWAR SINGH Vs. ABDUL HASSAN

JUDGEMENT

(1.) The petitioners as plaintiffs brought a rent suit against the opposite parties 5 to 10 for recovery of arrears of rent and obtained an ex-parte decree. The decree was passed on the 30 November in the following, terms: The defendants do pay to the plaintiffs the decretal amount mentioned therein within 15 days from the date on which the decree is signed. In default the defendants be ejected from the land in suit within 15 days from the date of the decree.

(2.) The opposite parties 1 to 4 claiming to be transferees of a portion of the holding deposited the decretal amount on their own account as such transferees. It is conceded that the holding was a non-transferable occupancy holding and that the opposite parties 1 to 4 are transferees of a portion of the holding. The landlord objected to their right to make the deposit but the Munsif accepted the deposit. The plaintiffs moved this Court as wall as preferred an appeal in the lower appellate Court. The appeal in the lower appellate Court was decided against him but their case before us is that no appeal lay to the lower appellate Court and that the present application which was filed in this Court within time from the judgment of the Munsif should be heard and decided on the merits. The learned vakil appearing for the opposite parties has taken a preliminary objection that this application does not lie as the question in dispute is governed by Section 47, Civil P.C. and that the petitioners should have come to this Court on second appeal. We are unable to give effect to this contention. There is-nothing in Act 8 of 1869 which makes the provision of the Civil P.C. applicable to sales under that Act.

(3.) This case comes from Sylhet where Act 8 of 1869 is in force and the decree that was passed in this case was passed under Section 52 of that Act. It is argued on behalf of the petitioners that under that section the opposite parties (we leave out of consideration the other opposite parties who are tenants and do not appear) are not entitled to make the deposit. The deposit contemplated under that section must be made by the tenant defendant himself or it may be made by any person on his behalf. On behalf of the opposite parties it is contended that the opposite parties having an interest in the property being purchasers of a portion of the holding are persons entitled to make the deposit under that section.