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Bahadur Vs. Bejoy Madhab Alias Bejoy Krishna Mitra and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in53Ind.Cas.143
AppellantBahadur
RespondentBejoy Madhab Alias Bejoy Krishna Mitra and ors.
Excerpt:
decree, whether binding on party who has no notice - compromise signed by pleader not having authority, validity of--civil procedure code (act v of 1908), order xxi, rule 90--execution of decree--sale--proclamation, omission in, whether ground for setting aside sale. - .....bighas. the plaintiff subsequently brought to sale the interest of the. tenant in execution of a rent decree and the defendant purchased that interest of the tenant. the bale proclamation gave the rent as rs. 68-12-3. the plaintiff then brought the present suit against the purchaser---the present defendant---for rent, alleging that the rent had been settled by the compromise decree. the case made by jibe defendant was that he was not bound by the terms of the compromise. obviously he is bound by the terms of the compromise, if he had notice of it and he is bound by the decree, whether he had or had no notice. this matter in the present case rests on the decree because a party who is privy to a decree is clearly bound whether he had or bad not notice. the doctrine of res judicata dearly.....
Judgment:

Fletcher, J.

1. This is an appeal preferred by the plaintiff against the decision of the learned Additional District Judge of Khulna, dated the 22nd December 1916, affirming the decision of the Munsif of the same place. The plaintiff brought the suit to recover rent. Originally the plaintiff was entitled to a one-fifth share of a certain estate in which the predecessor of the contesting defendant held a tenure. Whilst that condition of affairs existed, the plaintiff brought a suit for his share of the rent, estimating the area of the estate as being about 500 bighds, The result of that suit was that there was a compromise and the compromise was filed in Court, Under the terms of that compromise, the rent was settled at 13 annas 12 1/2 gandas per bigha and the total rent was fixed at Rs. 68 odd. A decree was drawa up in accordance with the terms of the compromise in these terms: 'It is ordered that a decree be passed for Rs. 3 2-11-3 against the tenant-defendant and that the annual rental be fixed at Rs. 68 12-3 in accordance with the solenamah.' That seems to have been clearly within the scope of the suit and that decree was an adjudication between the parties---it does not matter whether it was made by consent or otherwise---that the rent at which the tenant held was the sum of Rs, 68 odd.

2. It is not open to any of the parties to that decree or persons claiming under them to question that amount. That decree does not require registration under Section 17 of the Indian Registration Act. The rights of the plaintiff do not rest in this case on the solenamah which is an unregistered document, but they rest on the adjudication---no doubt by consent--in the decree fixing the rent at Rs. 68-12-8. Subsequently, the estate was partitioned by the Collector. The tenure held by the defendant's predecessor was found to be 1,230 bighas and the portion of the tenure which fell to the plaintiff's lot was 566 bighas. The plaintiff subsequently brought to sale the interest of the. tenant in execution of a rent decree and the defendant purchased that interest of the tenant. The bale proclamation gave the rent as Rs. 68-12-3. The plaintiff then brought the present suit against the purchaser---the present defendant---for rent, alleging that the rent had been settled by the compromise decree. The case made by jibe defendant was that he was not bound by the terms of the compromise. Obviously he is bound by the terms of the compromise, if he had notice of it and he is bound by the decree, whether he had or had no notice. This matter in the present case rests on the decree because a party who is privy to a decree is clearly bound whether he had or bad not notice. The doctrine of res judicata dearly does not depend on whether the party had or had not notice. I think in this case the defendant is in fact bound by the consent decree. Moreover, all the probabilities pf the, case show that he must have known all about this, because the sale proclamation. gives the rent as mentioned in the consent decree and everything suggests that enquiries were made by the intending purchaser as to bow that sum came to find its place in the gale proclamation.

3. Two other points were raised. One is that the solenamah on which the compromise decree was based was signed by a Pleader, and. it is not proved that one of the co sharers had given authority to the Pleader, to compromise on his behalf. The learned Judge says that this co sharer never disputed the document. He might have given his reasons more fully. This compromise was entered into in 1897. It has been anted on and Adopted ever since and whether the Pleader had instruction or not actually before the compromise was entered into, there can not be any doubt that the learned Judge was warranted in coming to the conclusion that either the Pleader had instruction or that his act was subsequently ratified by the co sharer.

4. The other point dealt with by the learned Judge was that there was an omission in the sale proclamation in not giving the details, of the compromise decree, but it is not shown that it was a material omission. Toe proclamation gives the amount of the rent, and, it is not for every omission in the proclamation of sale that the sale is liable to be set aside. It is not shown in the present case that the omission was a material one and it is not shown that the present defendant---the--- purchaser---had not, in fact, notice of all the details relating to the proclamation.

5. I think we ought to set aside the judgment and decree of the learned Judge of the lower Appellate Court and in lieu thereof decree the plaintiff's suit in full with costs both here and in the lower Courts. Let the case be remitted to the Court of first instance for the ascertainment of the actual amount due to the plaintiff. Only the tenant-defendant is liable to pay the costs.

Cuming, J.

6. I agree.


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