LAWS(PVC)-1938-12-60

MAHANI CHINERA Vs. MIR RAMJAN ALI

Decided On December 06, 1938
MAHANI CHINERA Appellant
V/S
MIR RAMJAN ALI Respondents

JUDGEMENT

(1.) THIS is a second appeal from an order passed by the learned District Judge of Cuttack declaring that the right, title and interest of the present respondent was not affected by a sale which had taken place in execution of a rent decree. The present appellant obtained a decree for rent against a large number of persons who held a mokadami tenure under him. THIS decree was obtained on 8th February 1934 and amongst the array of judgment-debtors appeared Kasiman Bibi, the mother of the present respondent. It is an admitted fact that this woman died in 1931 and there can be no doubt that the present respondent is her successor-in-title.

(2.) THE present respondent preferred an objection contending that his interest in the property could not be sold in execution of the rent decree as he had not been impleaded as a defendant. On behalf of the landlord, it was contended that as he had no notice of the death of Kasiman Bibi he was not bound to implead the respondent. In short, the landlord's contention was that as he had impleaded all the recorded tenants, the decree which he had obtained could be validly executed against the interests of every one concerned in the tenure. THE learned Deputy Collector, overruled the present respondent's objection and held that the sale in execution of the decree passed the interest of all the tenure-holders to the purchaser. On appeal the learned District Judge came to a contrary conclusion. He held that the sale did not affect, the right, title and interest of the present respondent as he had not been made a party to the proceedings. In my view the case is concluded by authority of this Court which is binding upon us. In Kesho Prasad Singh V/s. Shamanandan Rai AIR (1926) Pat 504 a Bench of this Court held that a decree passed against a dead person is a nullity. But the question whether the whole decree is a nullity depended upon the question whether the failure on the part of the plaintiff to bring the representatives-in-interest of the de-ceased on the record affected his right to proceed with the suit. Applying these principles they held that as a suit for rent against some of several joint tenants was maintainable, a decree for rent so obtained was a nullity only against the dead defendants or their representatives but was not a nullity against the living joint defendants. 4. THEy however held that such a decree could not be executed as a decree for rent but only as a simple money decree. THErefore at an execution sale the entire holding did not pass and the interests of the defendants who were dead at the institution of the suit, remained unaffected. THE facts of this case are very similar to the facts in the case now before the Court, and it appears to me that the reasoning of the Bench in that case applies with equal force to the facts of the present case. THE case to which I have referred was followed by another Bench of this Court in Raghunath Das V/s. Baleswar Prasad AIR (1927) Pat 426 in which it was held that a suit for rent against some only of the whole body of recorded tenants was maintainable and that the landlord could obtain a money decree for the whole amount of rent against one or more of such joint tenants whose liability for rent was joint and several. 5. In this case the position which arises in the present case was considered and it was clearly laid down that if a suit is instituted against the recorded tenants some of whom were dead a decree in the nature of a money decree could be obtained for the whole of the rent against the surviving tenants. In execution of such a decree the interest of the representatives of the deceased tenants could not be affected. In my view these two cases conclude the matter. In the present case the decree against Kasiman Bibi is a complete nullity. It has been contended that as her name was still recorded as a tenant the decree must be regarded as a decree which can be executed with respect to the interest held by her representatives. In my view, however as the lady was dead the decree has no effect whatsoever upon the interest which she held. 6. Reliance however was placed upon a decision of this Court, namely Jagdeo Nath Saha Deo V/s. Pratap Udainath Sahi Deo AIR (1924) Pat 889. At first sight this case appears to support the present contention of the appellant; but upon closer examination it is clear that it has no application whatsoever to the facts of the present case. In that case proceedings for rent had been brought against a number of tenants, two of whom were dead at the date of the institution of the suit. A decree was obtained and the property was put up for sale. No objection was made on behalf of the representatives of the two deceased tenants; but an objection was preferred on behalf of one of the tenants who was living. This Court held that he could not object to the sale of his interest in the property, and it is clear from the judgment that the Court was not considering the question as to whether or not the representatives of the deceased tenants could have objected. 7. In fact, there are indications in the judgment that the Court would have come to a different conclusion had the objections been made not by one of the judgment-debtors but by one of the representatives of the deceased tenants. THE case in Jagdeo Nath Saha Deo V/s. Pratap Udainath Sahi Deo AIR (1924) Pat 889 must be confined to its particular facts and in my view does not in any way conflict with the two decisions to which I have previously referred. THE decisions of this Court to which reference has been made are supported by decisions of the Calcutta High Court; but in my view as we are bound by these two previous decisions, it is unnecessary to consider decisions of any other Court. For the reasons which I have given I hold that the learned Judge was right in holding that the interest of the present respondent was not affected in any way by the sale which took place in execution of the decree. I would therefore dismiss this appeal with costs. Rowland, J. 8. I agree.