KEDAR NATH Vs. SAMRU KAZI

JUDGEMENT

(1.) The only question to be decided in this appeal is whether Section 148(h), Bengal Tenancy Act, is a bar to the execution of the decree which is sought to be executed by the appellants. It appears that the decree, in question was a decree for rent and was passed; m favour of Maksudan Bhagat and others on 20 April 1931. The decree-holders assigned the degree in favour of the appellants on 20th March 1934 having previous to that sold their interest in the zamindari to the superior landlord on 5 January 1933.

(2.) The appellants thereupon applied for execution on 27 April 1935. The Court of first instance held, that in view of the fact that the original decree holders had parted with their interest as landlords after the passing of the decree, it Could be executed only as a money decree and therefore Section 148(h), Bengal Tenancy Act, did not bar execution. The lower Appellate Court however has reversed this decision and held that, the execution is barred. The assignees have therefore preferred this appeal.

(3.) In the course of the argument before us, it was contended that the original decree obtained by Maksudan Bhagat and others must be treated as a money decree) because the suit related only to a portion of the holding. The Munsif did not accept this contention on the ground that there were no materials before him to support it. The point does not appear to have been raised again before the lower Appellate Court and that fact by itself should be enough to preclude the appellant from raising it. But on a perusal of the application for execution it is clear that the decree was sought to be executed as a rent decree and there are also certain statements made in that petition which indicate that the decree bad been obtained against the entire holding.