1. In the year 1869, the plaintiffs sued the present defendants and those who represent the half-share of the tenure for arrears of rent and obtained an ex parte decree in the Court of the Deputy Collector at the rate of Rs. 37-4 per annum for the half-share now in dispute. In the year 1870, they sued the tenants of the other half-share at the same rate. That suit was contested and was dismissed, but in appeal a decree was given at the rate admitted by those defendants, namely, Rs. 15, for that half-share.
2. In the present case the plaintiffs rely on the ex parte decree of 1869. The defendants, on the other hand, produce the decree in the suit of 1870 against the tenants of the other share, and claim to be treated in the same way. There is no evidence on the record except those two decrees. The lower Appellate Court, setting aside the judgment of the first Court, considered that, inasmuch as the defendants in the present suit had not obtained a reversal of the ex parte decree, it was conclusive against them, and held that the rent, Rs. 37-4, was the rent decreed in that ex parte case. It is not stated before us that that ex parte decree has ever been executed so as to become final. (As it was passed in 1869 it cannot now be executed). We therefore consider that it is not binding against the defendants, and that it is open to them to dispute the rate of rent claimed, and that the plaintiffs were bound to prove that they were entitled to receive it. In dealing with the case in this manner we follow the decision in the case of Nilmoney Singh v. Heera hall Dass I.L.R. 7 Cal. 23.
3. The decree of the lower Appellate Court must, therefore, be set aside, and that of the first Court restored. The plaintiff's will pay the cost of this Court and also of the lower Appellate Court.