DWARKANATH CHAKRAVARTI CHOWDHURY Vs. ATUL CHANDRA CHAKRAVARTI CHOWDHURY

JUDGEMENT

(1.) This is an appeal by the plaintiff against a decision of the Subordinate Judge of the!3rd Court of Mymensingh, dated the 30th April 1917. The plaintiff s suit was for rent of a certain tenure formerly held by the defendants but which was sold for arrears of rent on the 8th Falgoon 1320, as appears from the judgment. The lower Court gave the plaintiff a decree for a sum of Rs. 2,191-12-6 and for cesses at the rate of Rs. 286-11-2 per year, or in all for a total sum of Rs. 5,900-14-3.

(2.) The plaintiff appeals on two grounds. First of all he says that the Subordinate Judge should not have confined the decree, as he has done, to the security referred to in the plaint, but that he should have passed a personal decree against the defendants; and secondly, it is said that the Subordinate Judge erred in disallowing the plaintiff s claim for the Ashar Kist of 1318 as being barred by limitation.

(3.) The necessary, facts for the purpose of deciding this appeal are shortly as follows:--The father of one Annada Mohan Roy on the 12th April 1892 by a document of that date demised the tenure to the defendants at a rental of Rs. 2,192. Annada Mohan, on some date which is not material, commenced a suit for rent against the defendants, and on the 23rd February 1909 the suit was compromised on appeal, and it is upon one of the terms of the compromise that one of the questions that arise on this appeal turns. Clause (6) of that compromise decree, which was effected in Appeal No. 516 of 1907, provides that, the terms of the Mirash Ijara Pattah, dated the 1st Bysakh 1299, in respect of the properties mentioned in Schedule A were to be modified in the following manner, but that save and except such modification all other terms of the Pattah were to remain intact; and sub Clause (1) of Clause (b) which is the material clause, provides that Annada Mohan or his heirs should have the option of realizing the amount of any decree which he might in future obtain for the rent of the Mirash Ijara either by attachment and sale of the Mirash Ijara or by attachment and sale of the right, title and interest of the defendants Nos. 1 to 3 or their heirs, representatives or assignees in the property described in Schedule B; but that Annada Mohan Roy and his heirs, representatives or assignees should have no right to levy process of execution against the persons of the defendants Nos. 1, 2 and 3 or their heirs, representatives or assignees, or against any other property belonging to them save and except either of the properties described in the Schedule A or B in execution of any decree for rent in respect of the Mirash Ijara which Annada Mohan or his heirs, representatives or assignees might in future obtain against the defendants Nos. 1 to 3 or their heirs, representatives or assignees. On the 7th February 1910, the plaintiff in the present suit purchased Annada Mohan s interest in the Zemindari, and on the 28th July 1911 he sued for rent in respect of the tenure from the month of Chaitra 1316 to the month of Ashar 1318. On the 23rd July 1912, he obtained a decree and the sale of the tenure or security was directed. On the 12th March 1913, an appeal was presented by the defendants against the decree. The judgment was affirmed with this modification, that it was held that the Ashar Kist of 1318 should not have been allowed inasmuch as the suit was premature in respect of that Kist. On the 18th March 1915, the plaintiff appealed to the High Court but he withdrew his appeal. On the 29th November 1912, the plaintiff sued for the rent from Kartik to Chaitra 1318. He obtained a decree, and on the 21st February 1913, so we are told, the plaintiff purchased the tenure in execution of the decree, and on the 7th April 1916, the present suit was commenced by the plaintiff in respect of the rent which I have already stated, including the Ashar Kist of 1318 which had been disallowed in one of the previous suits. The Subordinate Judge has held that the Ashar Kist was time barred, but he has granted a decree for the amount which I have already stated, but he has limited the execution of the decree to the securities referred to in the compromise in Appeal No. 516 of 1907.