MANMATHA PAL CHOUDHURY Vs. SARADA PROSAD NATH

JUDGEMENT

(1.) This appeal has been preferred by three of the judgment-debtors, namely Manmatha Pal Choudhury, Amiya Pal Choudhury and Ranjit Pal Choudhury, and is directed against an order of the Subordinate Judge of Nadia, dated 5 July 1938. A preliminary objection has been taken that no appeal lies against the order complained of. A rule however in the alternative was issued by this Court. In order to decide not only the question as to whether the appeal is competent or not, but also the appeal on the merits, the following facts are necessary.

(2.) One Jagannath Khan and others, whom we shall hereafter call the Khans, took a loan of Rs. 1,80,000 from the Faridpur Loan Office in the year 1924. They executed a mortgage bond by which touzies Nos.336/6 and 441/6 of the Nadia Collectorate as also other properties were hypothecated. In 1931 the said Loan Office instituted a suit on their mortgage in the Original Side of this Court. A preliminary decree was passed on 9 July 1931 and the final decree on 9 January 1933. This decree was put into execution, and at the execution stage the judgment-debtors wanted time to pay up the decretal amount. There was an agreement between them and the Loan Office by which time was given to the former to pay up the decretal amount on their giving as further security for the decretal amount three decrees for rent which they had already obtained against their tenants as also the growing rents. This agreement was given effect to by the order of the Court dated 5 December 1934 and the sala of the mortgage properties was postponed. The judgment debtors however could not pay up the decretal amount within the extended period with the result that the sale was held. At the sale which was held on 27 February 1937 the respondent Sarada Prosad Nath purchased the properties. It is not disputed that he purchased touzis Nos. 366/6 and 441/6 of the Nadia Collectorate, but at one stage there was the question as to whether he had purchased the rights of the Khans to the rents which accrued in their favour up to that date from their tenants who held lands in the said two touzis. For the rents which accrued up to the year 1936, the Khans instituted a suit against their tenants who are ten in number, three of them are the Pal Choudhuris, the appellants before us. The rent suit was decreed on 15 April 1936 for a sum of Rs. 26,884. Sarada Prosad Nath claims that by reason of his auction purchase on 27 February 1937 the right to this rent decree has also vested in him. This rent decree was obtained in the Court of the Additional Subordinate Judge of Nadia, in respect of a patni tenure situated in the District of Nadia, which was held by the defendants in the rent suit, under the proprietors of the aforesaid touzis. The respondent Sarada made an application before the Court of the Additional Subordinate Judge of Nadia who had passed the decree for being substituted in place of the decree-holders, the Khans. This application was granted by the learned Subordinate Judge. An application for review was made by the judgment-debtors but that application has been dismissed. The question whether Sarada is entitled to be substituted in place of the original decree-holders, namely the Khans, is now finally concluded between the parties to this appeal. It is accordingly, as has been conceded by Mr. Bose for the appellants, no longer open to the parties to raise the said question.

(3.) The question involved in this appeal rests on the following facts. On 10 March 1938 Sarada Prosad Nath made an application for execution of the said rent decree in a tabular form before the Additional Subordinate Judge, Nadia. This was numbered as Rent Execution Case No. 5 of 1938. In column 2 he gave the names of the judgment-debtors, ten in number. In column 7, the amount due to him under the aforesaid rent decree is stated. In column 9 he stated that he wanted to proceed against seven out of the ten judgment-debtors, the last three being the appellants before us. In column 11 he prayed that orders may be passed for transmission of a certificate of non-satisfaction to the Subordinate Judge's Court, Alipur, District 24-Perganas, for realization of the amount due on this decree.