1. This is an appeal by the defendant from a judgment of the High Court of Calcutta in a suit brought by the plaintiff to recover rent. There is also before their Lordships a petition by the defendant in two former appeals before this Board to reform the Order in Council then made on the ground that it does not give effect to the intention of their Lordships as expressed in their judgment. These are the latest incidents in a series of legal proceedings which, owing mainly to the fault of the parties, have not had entirely satisfactory results. It will be necessary to state in outline so much of the previous history of the case as must be known to elucidate the present issue between the parties. In 1878 the predecessor in title to the plaintiff granted a lease to the predecessor of the defendant of a considerable portion of the land estimated at about 4,000 bighas. The land was mainly uncultivated; the tenant was to bring it into cultivation I within three years. For that period he was to hold it rent free; afterwards he was to pay thirteen annas per bigha rent It was a permanent transferable tenure at a fixed rent. The landlord purported to give possession to the tenant of the whole area as defined in the lease. Part of the area was said to include the Mauza Daskati; but though the tenant took possession of the whole Mauza, 61 acres was not the property of the lessor but of another owner, one Hari Charan Chowdhury. In 1888 Chowdhury dispossessed the then tenant not only of the 61 acres, but also of a much larger tract to which Chowdhury had no title. In September, 1917, the plaintiff, the then lessor, brought a suit for rent against the defendant Katyayani Debi, the then lessee, for rent for the year 1915-16, and in June, 1918, he brought a similar suit for the rent for the year 1916-17. The defendant had acquired the tenure as a purchaser at a sale in execution of a decree for arrears of rent against a former tenant. She was the wife of Hari Charan Chowdhury, who at the time when she had bought in 1894, still was in possession both of the 61 acres and the larger tract referred to. Her defence in both suits was that she was entitled to a suspension of all the rent, seeing that she had not received possession of the land included in the tenure, but possessed by her husband, and that she was entitled at any rate to an abatement of the rent proportionate to the land included in the tenure, but possessed by her husband. Both suits were tried together. The Subordinate Judge refused total suspension, but gave her the abatement asked for. The tenant appealed to the High Court, and the lessor preferred cross-objections. The two learned Judges who heard the appeal I.L.R. (1921) Cal. 257 gave judgment on May 31, 1921. They agreed with the Subordinate Judge as to suspension but differed as to abatement.
2. Woodroffe J. agreed with the Subordinate Judge. Cuming J, agreed to an abatement as to the 61 acres, but thought the tenant not entitled to an abatement in respect of the larger tract on which the husband was a trespasser. The Judges having differed the decree of the Subordinate Judge was affirmed. The tenant appealed to the Privy Council against the unanimous part of the decision of the High Court refusing suspension of rent. The lessor appealed to the Full Court by way of letters patent appeal against the decision which allowed abatement of the whole tract possessed by the husband. On the letters patent appeal the High Court I.L.R. (1922) Cal. 948 gave judgment on February 27, 1922. They affirmed the view taken by Cuming J. They stated in their judgment that the husband was the proprietor of the 61 acres, but as to the rest of the tract they pointed out that the husband had no lawful title, and that he could not acquire a title against the lessor by adverse possession during the continuance of the lease. Their decree, however, directs payment of rent for the whole block of land in Daskati possessed by the husband described as plots C, D, and D1 in the map of the Commissioner, and gives no abatement, therefore, in respect of the 61 acres to which the lessor had no title and of which the lessee had not possession. This was probably due to inadvertence, but as the learned Judges made reference in the judgment to a clause in a compromise agreement with a former tenant by which he bound himself not to claim abatement on any ground in respect of a specified area, it is possible that the decrees accurately represented their intention, The latter point becomes immaterial in view of the judgment of this Board now to be mentioned. The tenant in turn appealed from the decision in the letters patent appeal to the Privy Council, Treating the two rent suits as one there were thus now two appeals to the Privy Council, one from the two Judges who had decided partly in favour of the defendant and one from the Full Court who had decided wholly against the defendant. Certificates of leave to appeal in both appeals were given on the same day, May 12, 1922. It is, of course, anomalous that there should be two appeals proceeding at the same time, one from the lower Court and one from the higher Court which had already varied the order of the lower Court. The anomaly is possibly due to a doubt which has existed as to the power of the Court under letters patent appeal to do more than deal with be much of the case as has been the subject of difference in the Court below. It seems to their Lordships desirable that in some manner the recourse to two appeals to the Privy Council in such cases should be avoided. The two appeals proceeded, they were heard together, and judgment (1924) 300. W.N. 1 was delivered on December 11 1924. In their Lordships' judgment it was mentioned that the appellant had obtained possession of the whole lands within the boundaries mentioned in the lease with the exception of a small area of 61 acres to which the husband had a paramount title, and a much larger area in respect of which he had no title. Their Lordships state, 'It is conceded that she is entitled to an abatement of rent applicable to the 61 acres above referred to, and this has been allowed by the judgment under appeal.' As has been said, this was a misapprehension. Later on their Lordships proceed to discuss a clause in the lease on which the defendant relied, and say it 'may be held to cover the dispute with regard to the 61 acres of land that have been duly investigated and in respect of which an abatement of rent corresponding to the area has been made,' They express entire agreement with the judgment of the High Court, advise that the appeal should be dismissed with costs. They state that they are not at present satisfied that what they call an alternative ground of judgment based on the compromise is well founded, but express no final opinion upon the matter. The Order in Council dated December 17, 1924, as drawn up, directs that the appeals should be dismissed and the decrees of the High Court dated May 31, 1921, and February 27, 1922, be affirmed. It appears to their Lordships plain that this Order does not carry out the intention of the members of the Board as expressed in their judgment. In the first place it affirms the decree of May 31, 1921, which gave the defendant an abatement in respect of the larger tract as well as the decree of February 27, 1922, which disallowed that abatement. In the second place their Lordships clearly intended the defendant to receive an abatement in respect of the 61 acres, and would not have affirmed absolutely the decree of February 27, 1922, had it been brought to their notice that it did not give the defendant the abatement to which they thought she was entitled. The jurisdiction of the Board to recommend the alteration of a former Order in Council on the ground that by inadvertence it does not give effect to the intention of the Board as expressed in their judgment is undoubted, It appears to their Lordships that it should be exercised in the present case in order not to defeat the manifest rights of the defendant which were intended to be effectuated by the former decision of the Board.
3. Once this is made clear the position of the parties in the pre-sent suits is free from doubt. The present appeals are in respect of suits for rent brought in continuance of the suits which reached the Privy Council. The first was brought on March 26, 1919, for rent for the year 1918-19. The second on March 21, 1923, for the three years 1919-20, 1920-21, 1921-22. The appellant in the second suit is a member of the tenant's family, in whom, by arrangement between themselves, the tenure is vested. The defendant in the suits raised all the defences which were set up in the former suits. They stood over for ultimate decision until the hearing by the Privy Council. After that decision the only defence relied on was the claim for abatement as to the 61 acres. The learned Subordinate Judge thought that the judgment of the Privy Council justified him in giving effect to the claim for abatement, and awarded interest on the balance, pendent lite, at six per cent. per annum. On appeal to the High Court the learned Judges relied on the terms of the ultimate decree, refused abatement and allowed interest, pendente lite, at twelve per cent. The defendant appeals from this decision both as to the abatement and as to the interest. It follows from what has been said that the defendant is entitled to the abatement asked. As to the interest, the amount to be allowed is very largely a matter of judicial discretion, and their Lordships see no reason for interference with the discretion exercised by the Subordinate Judge. Their Lordships are of opinion that the Order in Council, dated December 17, 1924, should be amended by delating the words 'the decrees of the High Court of Judicature at Fort William in Bengal dated respectively May 31, 1921, and February 27, 1922, affirmed,' and substituting therefor the words 'the decree of the High Court of Judicature at Fort William in Bengal dated February 27, 1922. ought to be varied by allowing the appellant an abatement of rent and interest in respect of 61 acres of land and subject to such variation ought to be affirmed.' In the appeals they are of opinion that the appeals should be allowed and the decree of the Subordinate Judge dated May 13, 1925, be restored. In the circumstances they do not think that either party is entitled to costs either in High Court or before the Board. They desire to add that counsel for the appellant very properly intimated that his client would not seek to recover any moneys which may have been paid to the plaintiff' under the decrees affirmed by the Privy Council, and they recommend the variation of the Order subject to this condition. Their Lordships will humbly advise His Majesty accordingly.