1. A Putni, belonging to the defendants other than the defendant No. 1, was sold by the defendant No. 1, the Maharaja of Burdwan, under the provisions of Regulation VIII of 1819 for arrears of rent. In due course, the Putnidars instituted a suit to have the sale set aside, and the sale was set aside in proceedings properly taken under Section 14 of the Putni Regulation. To those proceedings the plaintiffs, who had purchased the Putni at the sale, were made parties. In the decree made by the Court, it was directed that the Maharaja should refund to the present plaintiff who were the auction-purchasers the purchase-money which they had paid, amounting to Rs. 600 with interest. It was further directed that the original Putnidars were to recover possession of the property from the present plaintiffs with mesne profits. In that connection, there was an important direction in the judgment which the Court delivered. The amount of mesne profits, says the learned Subordinate Judge, 'will be ascertained in execution when the amounts spent by defendants in connection with the Putni for the management and payment of rent and other necessary things will be taken into account.' The Court, therefore, clearly contemplated that when the mesne profits payable by the plaintiffs were ascertained the plaintiffs would put forward their counter-claim on account of rent and other outgoings. We are told that the decree was put in execution for the mesne profits. But the present plaintiffs in those proceedings omitted and, in our opinion, wrongly omitted to make any claim for the amount of the rent which they had paid to the Maharaja during the period for which they were in possession and in receipt of the profits. Instead of making that claim at that appropriate time, they brought the present suit in which they sue the Maharaja of Burdwan and the original Patnidars for the sum which they paid to the Maharaja by way of rent. There appear to us to be several answers to the suit, more than one of which is fatal to the plaintiff's case.
2. In the first place, the suit was instituted more than three years after the date of the decree of the first Court setting aside the Putni sale. It was also instituted more than three years after the last of the payments made on account of rent. 'Whether, therefore, Article 62 or Article 97 of the Limitation Act applies, the suit is barred by limitation. In that connection we need only refer to the reuent decision of the Privy Council in Hukum Chand Boid v. Pirthichand Lal 50 Ind. Cas. 444 : 23 C.W.N. 721 : 17 A.L.J. 514 : 36 M.L.J. 557 : 21 Bom L.R. 632 : (1919) M.W.N. 258 : 30 C.L.J. 71 : 46 C. 670 : 26 M.L.T. 131: 10 L.W. 416 : 46 I.A. 52 (P.C.).
3. The same case is also authority for the proposition that a suit for rent paid to the Zamindar by the auction purchaser of a Putni during his period of possession will not lie against the Zemindar. We see nothing contrary to Justice or good conscience in the Maharaja of Burdwan keeping the rent which has been paid to him by the plaintiffs. Apart from that, the point is, in our opinion, conducted by the decision of the Privy Council.
4. Then, there is the further question whether, under Section 14 of the Putni Regulation, a separate suit of this kind is admissible. In the case to which we have already referred the Privy Council appear to us to have expressed a strong inclination in favour of the view that the remedies provided by Section 14 are exclusive, Their opinion is no doubt expressed in guarded language. But apart from some such countervailing, consideration, as a long and uninterrupted course of practice, we apprehend that their Lordships are disposed to regard the remedies provided by the Regulation as the only remedies which the law provides. In view, however, of the finding already arrived at on the subject of limitation, it is unnecessary for us to express a final opinion on that question in the present case. The learned Vakil for the auction-purchasers, the plaintiffs, relied on the decision of this Court in Radha Madhub Samonta v. Sasti Ram Sen 26 C. 826 at p. 829 : 13 Ind. Dec. (N.S.) 1129, where the claim was made against the original Putnidars. We may point out that there is an earlier decision of this Court with a contrary implication in Suresh Chandra Mukhopadhya v. Akkori Singh 20 C. 746 : 10 Ind. Dec. (N.S.) 503. This case does not appear to have been cited before the Bench which decided the later case. Reference may also be made to Tara Chand v. Nafar Ali 1 C.L.R. 236.
5. As regards the original Putnidars, who were also impleaded as defendants in this suit, the plaintiffs appear in the Court below to have given up their claim as against them. The learned Vakil who appears for the plaintiffs before us has pressed us somewhat strongly to exercise in favour of the plaintiffs the power given to an Appellate Court by Rule 33 of Order, XLI, Civil Procedure Code. In view, however, of the fast that the plaintiffs made no claim in the execution proceedings and that we are not acquainted with all that took place in those proceedings, and also in view of the grave doubt which arises whether such a suit lies, we are unable to accede to his request. Moreover, the claims against the Putnidars would also, it appears, be barred by limitation under Article 61.
6. In the result, we set aside the judgment and decree of the Court below and dismiss the plaintiff's suit. The appellant, the defendant No. 1, is entitled to his costs in this Court and in the Court below. We assess the hearing fee in this Court at five gold mohurs.