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Judgment
Rownand, J.—This is an appeal by the judgment-debtors against whom execution was taken. In the Munsif''s Court they objected that the execution was barred by Article 6 of Schedule 3, Bihar Tenancy Act, and this objection succeeded, the application to execute having been presented more that three years after the passing of the decree. On appeal the Subordinate Judge thought that limitation was governed not by Article 6 of the said Schedule but by Article 182 of the Schedule to the Limitation Act. He, on this view, considered that the question whether the execution was time barred would depend on whether there had been an intermediate application to execute the decree at a date which would save limitation under Article 182.
Against that order this appeal is presented, and it is contended that the limitation for this application to execute the decree is that prescribed by Article 6, Schedule 3 to the Bihar Tenancy Act which cannot be extended beyond the period of three years in consequence of the presentation of an intermediate application to execute the decree.
It is necessary to state the particulars of the suit and of the decree passed. The plaintiff, who is the sixteen annas proprietor of the estate, instituted a suit claiming the sixteen annas rents of two tenures for four years. These tenures are those recorded in khewat Nos. 2 and 4 of the record of rights, khewat No. 2 bearing an annual rent of about Rs. 47 and khewat No. 4 the annual rent of Rs. 69. The persons interested in khewat No. 2 were not identical with those interested in khewat No. 4, for the holders of khewat No. 2 were defendants 1 to 12 of the suit and the holders of khewat No. 4 were defendants 1 to 9 only. There was also a claim in respect of some jagir and balagan lands. The suit was defended and an objection taken on the ground of multifariousness.
By compromise between the, parties it was settled that the suit be dismissed as regards the jagir and other miscellaneous items claimed but be decreed separately in respect of each of the two khewats with the result that the decree-holder was given a decree for Rs. 204-4-6 against the defendants 1 to 12 in respect of khewat No. 2 and another decree for Rs. 309-11-9 against defendants 1 to 9 in respect of khewat No. 4. The Munsif thought that the judgment creditor should be deemed to hold two separate decrees, each of them for amounts less than Rs. 500, so that Article 6 was applicable. The Subordinate Judge thought that the decrees were money decrees and not rent decrees and also that they are to be treated as a single decree. In my opinion, the Subordinate Judge was in error in both these points. He has drawn a wrong inference from Hridoy Nath Das v. Krishna Prasad (1907) 84 Cal 298, the true effect of which decision can best be gathered by reading it in connexion with subsequent decisions of the same High Court and of the Privy Council in Dhirendra Nath v. Nischintapore Co. AIR (1918) Cal 929 and Prafulla Nath v. Satya Bhusan AIR (1929) PC 171, respectively. The case in Hridoy Nath Das v. Krishna Prasad (1907) 84 Cal 298 decided this, that if a single decree is obtained against more tenancies than one, and if those tenancies are put up to sale in execution of such a decree, the sale will not carry the special consequences which the Tenancy Act attaches to the sale of a tenancy in execution of a decree for its own arrears.
The consequences of the sale will be as against incumbrancers nothing more than the consequences of a sale in execution of a money decree. The Subordinate Judge appears to have read into this decision more than the Judges decided.
In the next case, Dhirendra Nath v. Nischintapore Co. AIR (1918) Cal 929, a single suit had been instituted by the plaintiffs for rent claimed from the defendants in respect of three distinct tenancies held under three separate contracts. It is clear that in such a suit if a decree was obtained for the entire sum due, such decree could not be executed as a decree for rent against any of the tenures.
This is in accordance with what was settled by the case I have previously cited. So, at the instance of the plaintiffs a decree was drawn up which specified the amount realizable by the sale of each of the three tenancies respectively. It was held that the position resulting was precisely the same as if the plaintiffs had brought three distinct suits for rent against the defendants, one in respect of each tenancy, and it was said to make no difference that instead of being drawn up on three different sheets of paper the three separate decrees had been drawn up on one sheet of paper Each decree, it was said, carried the consequence that it could be executed as a rent decree against the tenancy in default, and it was further held that for the purpose of limitation also it was to be considered that there were three separate decrees.
In the Privy Council case in Prafulla Nath v. Satya Bhusan AIR (1929) PC 171, their Lordships had to consider the effect of a sale of a number of separate tenures in; execution of a single decree with particular reference to the right of the auction-purchaser to annul incumbrances consisting of sub-tenures. Their Lordships held that it could not be said that each of the tenures had been sold for its own arrears, that the sub-tenure-holders were entitled each to save from sale the tenure under which he held by paying up the arrears of that tenure, and it would defeat the Objects of the Act if several tenures could be lumped together in one order for sale. Thus, in deciding the case before them the decision of their Lordships was in agreement with that in Hridoy Nath Das v. Krishna Prasad (1907) 84 Cal 298 and other ''decisions of the Calcutta High Court.
But their Lordships went on to comment on a view that had been expressed in this country that when a plaintiff has joined in one suit claims in respect of more than one tenure such a suit cannot result in a decree or decrees to sell the tenures separately so as to give the purchaser power to annul the incumbrances on each separate tenure. Their Lordships did not accept this view and pointed out that there was nothing in the CPC or the Tenancy Act to prevent the decrees and orders from being so moulded as to enable their provisions to apply distributively to the separate holdings in respect of which the suit is brought "It would be a misfortune," said their Lordships,
to find a system of procedure so rigid as to lead to an illogical and inconvenient result and their Lordships are not prepared to hold that this difficulty exists. But obviously if the original suit is brought in respect of separate tenures the plaintiff must see that the subsequent process takes such a. form that the tenures are in fact sold separately.
Reading these three decisions together, it is clear that the result of what was done in the original suit was to bring into existence two separate decrees, one against defendants 1 to 12 for the rent due to the plaintiff in respect of khewat No. 2 and another against defendants 1 to 9 for the rent due in respect of khewat No. 4. Each of these decrees was executable as a rent decree in accordance with the provisions of the Tenancy Act; each of them is for a sum of less than Rs. 500; and I have no doubt chat execution of either of them is governed by Article 6 of Schedule III to the Tenancy Act. It has been argued for the respondent that the nature of the decree depends on the frame of the suit and that this having been a suit for the rent of more than one tenure was a suit in which only a money decree could be passed.
Indeed, it has been said that the suit was multifarious and was liable to be dismissed on this ground. As to that I must observe that under Order 1 Rule 9, Civil P.C., suits are not to be dismissed for misjoinder or nonjoinder of parties and that in case of misjoinder of Causes of action the Court can in proper cases call on the plaintiff to amend his plaint by limiting the relief claimed to what he is entitled to in respect of one cause of action so as to avoid embarrassment. When this procedure is followed the plaintiff can of course bring a separate suit in respect of the other cause or causes of action. But when this course was not taken nothing turns on the fact that it might have been taken. Once a multifarious suit has been allowed to proceed and has resulted in a decree, the defect is considered to have been waived and is irrelevant.
Mr. Mahabir Prasad also invited me to hold that unless a suit was at its institution framed in accordance with the provisions of the Bengal Tenancy Act, it could not result ''in a decree under that Act. He relied on Mahendra Nath v. Ashutosh Fradhan AIR (1926) Cal 545 but the decision was on facts very different from those before me and does not seem to be applicable here. If it were applicable, I would point out that it was pronounced before the decision of the Judicial Committee of the Privy Council in Prafulla Nath v. Satya Bhusan AIR (1929) PC 171, and in so far as it might lead to results at variance with the decision of their Lordships it could not be regarded as good law. The decision of the Munsif was correct and that of the Subordinate Judge erroneous. The appeal is allowed and the decision of the Munsif restored. The appellants will have their costs.