1. This Rule is directed against an order of the Sub-Judge, dated the 25th April 1911, amending his decree, and the appeal is directed against the decree prepared in accordance with that amendment.
2. The question for determination turns upon Section 66 of the Bengal Tenancy Act.
3. The plaintiff obtained a decree for the arreas of rent accrued due in respect of the years 1312 to 1815 inclusive, and the decree, as originally prepared, enabled him to eject the defendant in default of payment of the entire decretal money within fifteen days. The plaintiff executed his decree and took possession; but, subsequently, the defendant asked for the decree to be amended, and it is conceded that, if the amendment, as allowed, holds good there was money in deposit from which the arrear of rent for one year only might have been satisfied; and, if it had been go satisfied, the plaintiff would not have been able to eject the defendant in terms of Section 66 of the Rent Law.
4. It is urged on behalf of the plaintiff that it was not open to the Sub-Judge to amend his decree after it had been executed and satisfied and that his original decree was in accordance with the judgment.
5. In our opinion, neither of these contentions is well founded. The cases upon the subject are Siti Nath Midda v. Basudeb Midda 2 C.L.J. 540 which followed Jugeshuri Chowdhrain v. Mahomed Ebrahim 14 C. 33. The facts of the earlier case are not altogether the same as in the latter decision. The facts of the case before us, however are exacily similar to those in Sita Nath Midda v. Basudeb Midda 2 C.L.J. 540 because, there the suit for rents arrears was in respect of four successive years, and it was held that, in respect of the first three years, the landlord had waived his claim for ejectment. We have no hesitation in applying the principle so accepted.
6. The original decree prepared was not in accordance with the judgment, dated the 23rd June 1911, because the judgment directed that a decree for ejectment should be made in terms of Section 66. As we have observed Section 68, as interpreted, refers to an arrear for one year only. If the landlord omits to sue for ejectment in default of payment of the arrear for one year, he must be deemed, so far, to have waived his right to turn out the tenant. Consequently, it was open to the Sub-Judge to amend his decree so as to bring it, into conformity with that part of the judgment which dealt with ejectment in terms of Section 66(2) of the Act. By the expression 'decretal money,' in the last sentence of the judgment, we understand the decretal money' as limited and confined to the amount as specified in accordance with Sub-section (2) of Section 66. It cannot mean the entire decretal sum for which the decree for arrears of rent is passed.
7. In this view, the appeal fails and is dismissed with costs, one gold mohur.
8. The Rule is also discharged with cists, one gold mohur.