1. This appeal, arises out of a suit for the recovery of arrears of rent on the basis of a kabuliyat. This kabuliyat stipulated that arrears of rent should bear interest at the rate of 75 percent, per annum and in decreeing the claim both Courts have enforced this stipulation, The defendant appeals and on his behalf the sole contention is that interest at so high a rate is contrary to law.
2. It appears that the respondent ban twice before obtained decrees for arrears of rent on the basis of this kabuhyat with interest at the rate stipulated. In 1911 the Munsif decreed the suit in part, but allowed interest at the rate claimed. His finding on the subject of interest was that the lease is a kayemi raiyati lease and that plaintiff was entitled to the rate claimed (vide Exhibit D). This finding had reference, no doubt, to the provision of Sections 178 and 179 of the Bengal Tenancy Act. The plaintiff appealed in respect to the part of his claim for arrears which had been disallowed, and the appeal was decreed on the 25th August 1912 (vide Exhibit E). It is said that there was a cross-appeal by the present appellant on the subject of the rate of interest which was dismissed for default. However that may be, the Munsif's finding as to the liability of the present appellant to pay interest at 75 percent. was undisturbed.
3. The present respondent instituted a second suit for arrears for a subsequent period and this suit was decreed in his favour on the 20th. March 1915. The judgment is not upon the record but an appeal was preferred against it and from the appellate judgment (Exhibit 2) dated the 19th June 1916 it can be gathered that the question was raised as to whether the earlier decisions on the subject of the liability to interest at the rate claimed operated as res judicata. The learned Subordinate Judge observed in the judgment just referred to: 'A wrong decision in a rent suit about interest does not operate as a res judicata in a Sub-sequent rent-suit. But in the present case the previous judgment was not a wrong one. It appears from' the lease that the jama was permanently fixed and trie tenure created by it is heritable and transferable.'
4. In the present suit the second issue was: 'Is the plaintiff entitled to interest claimed?' The learned munsif's finding on this issue was to the effect that the earlier judgments (Exhibits D and E) operated as res judicata 'so-far as liability to pay interest is concerned' As regards the rate of interest, he refused to interfere with the contract entered into between the parties. The learned Subordinate Judge in appeal seems to have been of opinion that the earlier decisions ware res judicata both as to the liability to pay interest in general and as to the rate claimed. But he found in addition that the rate claimed was 'not penal' and that the present appellant was liable to pay at that rate.
5. For the appellant the main contention is that these earlier decisions on the subject of liability to pay interest were contrary to law and are not res judicata; and that it is still open to him to agitate the question of whether on a true construction of the kabuliyat he is entitled to the protection afforded by Section 178 (h) of the Tenancy Act. The general question thus raised is not free from difficulty. But the particular aspect of it with which we are at present concerned appears to be concluded by the decision of this Court in Bishnu Priya Chowdhurani v. Bhaba Sundari Debya 28 C. 318. There the question was whether a payment stipulated for in a kabuliyat was an abwab; It was observed that 'the question is whether a particular stipulation contained in a particular kabuliyat having been held to be valid as between the parties, it is open to the Court subsequently to try the issue, whether that particular stipulation is valid or not, and to that question we think the answer ought to be in the negative.'
6. The learned Vakil for the appellant has referred to two decisions of this Court, Alimunnissa Chowdhurani v. Shama Charan Roy 32 c. 749 : 1 C.L.J. 176 : 9 C.W.N. 466, and Baij Nath Goenka v. Padmanand Singh 14 Ind. Cas. 124 : 30 C. 848 : 116 C.W.N. 621 : 16 C.L.J. 154. In the first of these Maclean, C.J, expressly refrained from laying down the proposition for which the learned Vakil for the appellant contends, namely, that a point of law can never constitute res judicata; and the judgment proceeded largely on the ground that the decision which it was sought to treat as res judicata was come to on the authority of a reported decision of this Court which a Full Bench Subsequently overruled. Coxe, J., in the latter of these cases, went no further than to say that a decision that is contrary to law may not have the force of a res judicata.
7. We are of opinion that in the present case the liability of the appellant to pay interest on arrears of rent at the rate provided for in the kabuliyat is res judicata between the parties The question of whether that liability should be enforced in respect to any particular arrears is open for decision when it arises. In the present instance we see no reason why it should not be enforced, This appeal is consequently dismissed with costs.