KAMINI MOHAN Vs. MOHAN LAL BAYEED

JUDGEMENT

(1.) This rule raises a somewhat interesting question of law under Section 153, Bengal Tenancy Act. The material facts are simple and may be briefly summarised as follows: The opposite party brought a suit, being suit No. 130 of 1942, in the Court of the Second Munsif of Dinajpur Sadar under Section 144, Bengal Tenancy Act and claimed to recover from the petitioner a sum of Rs. 46-2-3 as rent due on account of one tenancy and a further sum of Rs. 23-8-3 as rent on account of another tenancy. Decrees in accordance with Section 144, Bengal Tenancy Act were in due course passed and the opposite party put the decree which he obtained in respect of the first tenancy into execution, and purchased the tenancy himself. Thereupon, the petitioner made an application under Section 174(3), Bengal Tenancy Act for having the sale set aside on the usual grounds, viz., suppression of notices and sale at an abnormal low price. This application succeeded and by an order passed on 15-1-1945, the learned Second Munisf of Dinajpur set aside the sale. He held that the sale proclamation had been fraudulently suppressed.

(2.) Against that order an appeal was preferred by the opposite party to the District Judge of Dinajpur which came to be disposed of by the learned Additional District Judge. A preliminary objection was taken before him on behalf of the petitioner to the effect that having regard to the provisions of Section 153(b), Bengal Tenancy Act, no appeal lay at all. The learned Judge overruled this contention in the view that in the case of a suit brought under Section 144, Bengal Tenancy Act, "the amount claimed in the suit," as contemplated by Section 153(b), was the sum total of the several amounts claimed in respect of the several tenancies. Since, in the present case, the sum total of the amounts claimed in respect of the two tenancies exceeded Rs. 50, the learned Judge held that Section 153 was no bar to the maintainability of the appeal. He then proceeded to deal with the appeal on the merits and held that suppression of the sale proclamation had not been proved. In the result he allowed the appeal and set aside the order of the learned Munsif.

(3.) Against that appellate order the petitioner obtained the present rule which was issued on only one ground. That ground is to the following effect: For that the learned appellate Court ought to have held that the appeal from the decision of the Munsif who has got final jurisdiction in respect of the matter in suit was not competent in law.