ROHINI KUMAR ROY Vs. UDAY CHAND MAHATAB

JUDGEMENT

(1.) This appeal is on behalf of the judgment-debtors and is directed against an order dated 27-11-1945, passed by the learned Second Subordinate Judge of Hoogly by which an objection preferred by the appellants under Section 168A, Ben. Ten. Act, was rejected.

(2.) The material facts are the following. On 9-6-1942, the respondent brought a suit, being Title Suit No. 2 of 1943, in the Court of the Second Subordinate Judge of Hooghly, asking for specific performance of a contract as also the recovery of a sum of Rs. 1829-12-10. The case upon which these claims were made was of a somewhat complicated character. Shortly stated, the plaintiff's case was that a certain patni, namely lot Santoshpur was sold, for the arrears of the Bengalee year 1342 and purchased by the appellants. The defaulting patnidar brought a suit for having that sale set aside but during the pendency of that suit the patni wa3 sold again and purchased by a third party named Bata Krishna Mandal. This Bata Krishna Mandal was added as a party to the suit already brought by the old defaulting patnidar and ultimately by the decree passed in that suit both the second and the third patni sales were set aside. Then there was a fourth sale for default in respect of the Bengalee year 1345 and this time the patni was purchased by the respondent himself who was the superior proprietor. It was alleged in the plaint that after the respondent's purchase of the patni, the appellants approached him for a re-settlement with them and on 4-11-1939 an order, agreeing to such re-settlement, was made. The plaint proceeded to state that on the basis of that resettlement the appellants went into possession of the patni and were recorded as patnidars in the papers of the respondent; that they made certain payments as patnidars; but that a large amount of the rent had fallen into arrears and the appellants had also not executed an iden-ture of lease as stipulated. On these allegations, the plaintiff asked that a decree might be passed in his,favour for specific performance of the contract for patni settlement and also a money decree on eitheriof two alternative grounds. If it was held that the appellants were liable to perform specifically the contract for settlement of the patni, a decree might be passed against them for rent, but if the Court held that the plaintiff was not entitled to specific performance, then a decree might be passed for a certain amount as damages.

(3.) On that plaint an ex parte decree was-passed on 28-1-1944. The prayer for specific performance was allowed and it was stated that "the plaintiff will get the amount claimed." The heading of the decree describes the suit as one for specific performance of contract and recovery of arrears of rent and cesses with interest.