THAMAL MARAP Vs. RANI ABHOYESSURI DEBI

JUDGEMENT

(1.) In this case the opposite party obtained a decree against the petitioner under Section 52 of Bengal Act VIII of 1869 for arrears of rent and for ejectment if the arrears were not paid within 15 days. The petitioner appealed to the District Judge, During the pendency of the appeal the amount due under the decree of the Original Court was paid. Subsequently the appeal was dismissed with costs. These costs were not paid within 15 days from the date of the appellate decree, and the Opposite Party obtained an order from the Munsif in execution for the attachment of the petitioner's movable property and for his ejectment from the land in suit.

(2.) The petitioner has obtained a rule from this Court on the opposite party to show cause why this order should not be set aside on the ground that the Munsif had no jurisdiction to pass orders for attachment and for ejectment simultaneously. There is no provision in Act VIII of 1869 which in so many words forbids the issue of these two orders simultaneously. But it is argued on behalf of the petitioner that as the costs of the appellate Court were not made payable within 15 days from the date of the decree and were paid when the Nazir went to the spot, ejectment should not also have been allowed. It appears to us, however, that these costs of the appellate Court, which were incurred by the petitioner in his unsuccessful appeal against the decree of the Munsif, must be regarded as subject to the operation of Section 52. In Noor Ali Chowdhuri V/s. Koni Meah 13 C. 13 the learned Judges held that in cases of this nature the decree and the only decree of which execution can be taken out is the appellate decree and that that decree must be presumed to incorporate the terms of the original decree. This being so it appears to us that the order for the payment of costs in the appellate decree must be regarded as part of the ultimate decree passed under Section 52 of Act VIII of 1869, and that the amount, therefore, under the provisions of that section had to be paid within 15 days from the date of the decree. Now, as the section provides that if the sum is paid within 15 days from the date of the decree the decree-holder shall not be entitled to execution, it seems to follow that if the sum is not paid within that time the decree-holder is so entitled. It does not seem to us that after that time has elapsed there is any material irregularity in issuing orders simultaneously for ejectment and for recovery of the decretal money to both of which reliefs the decree-holder is entitled. If this view is correct it cannot be said that the Munsif's order was without jurisdiction.

(3.) The rule is accordingly discharged with Costs, two gold mohurs.