The Judgment of the Court was as follows:—
Henderson, J.:— Only one point has been pressed in this appeal. The suit is one for rent. The Appellant is Defendant No. 5, the only one of the tenants who actually contested the suit. The Plaintiffs were three co-sharers named Harinath, Amaresh and Kumaresh Das. They instituted the suit to recover rent and for additional rent both under sec. 52 and sec. 30(b) of the Bengal Tenancy Act. The Appellant took every conceivable kind of defence. He denied the relationship of landlord and tenant, he disputed the annual amount of rent, he disputed the claim for enhancement both under sec. 52 and sec. 30(b). The Plaintiffs were substantially successful. They got a decree for back rent and for en-hanecment both under sec. 52 and sec. 30(b).
The suit was originally decreed ex parte. Harinath then executed a lease of his interest in favour of the present Respondent No. 1, Basanta Kumar Sen. He also sold the decree to him by a kobala. Subsequently the ex parte decree was set aside on an application under Or. 9, r. 13 at the instance of Defendant No. 6 who abandoned his defence during the trial. Basanta Kumar then substituted himself as a Plaintiff in place of Harinath.
The only point now pressed is that Basanta is not entitled to his share of the back rent because the kobala was not registered. The contention made by Mr. Das is that it comes within the terms of sec. 17(1)(e) of the Registration Act. Whether it does so or not will depend upon whether the decree creates any interest of the value of Rs. 100 and upwards in immovable properly. The contention of Mr. Das is that it does, because under sec. 65 of the Bengal Tenancy Act a charge is created by the decree itself.
Two arguments have been made by Mr. Shastri against the contention. The first is that the kobala is not confined to the decree. That is undoubtedly correct. As the decree has been vacated, if the kobala were confined to the decree Basanta would have purchased nothing by it. It appears that even though the parties to the document did not actually suspect, they realised the possibility of an application under Or. 9, r. 13. The kobala, therefore, transferred both the decree and the actual back rents. It is owing to this position that Basanta was able to get himself substituted in place of Harinath as a Plaintiff. As such he has now obtained the present decree. He has not attempted to execute the previous decree which was subsequently set aside.
Now, in our opinion it matters not what the position is at the present rime. In order to determine whether the kobala is liable to registration, it is necessary to find out what was transferred by it. It cannot be doubted that the decree was so transferred. We have examined the decree. It is not a money decree but a rent decree. It did create a charge on the property and it, therefore, comes within the terms of sec. 17 of the Registration Act.
The second argument of Mr. Shastri was that the method of enforcing a charge and a mortgage is not the same. In our opinion that makes no difference. This is more or less the view which appears to have been taken by the learned Subordinate Judge. Although in one passage of the judgment he says that the document does not require registration, he, in effect, finds that it does. He says that because it was not registered the Plaintiffs cannot execute the decree by enforcing the charge by the procedure laid down in Chapter 14 of the Bengal Tenancy Act, but must execute it merely as a money decree.
In our opinion it is quite irrelevant to speculate as to the particular method in which the decree may or may not be executed. The liability of the kobala for registration depends upon what was transferred by the kobala. As I have already pointed out, what was transferred was a rent decree. At the actual time when the kobala was executed there was nothing else because the claim for back rents had already merged in the decree. That decree created a charge and, therefore, required registration.
The defence has no kind of merit in it. The Appellant is taking advantage of an oversight by the legal advisers of Respondent No. 1 to avoid paying money which he undoubtedly ought to pay. We shall, therefore, not allow him any costs.
The decree will, therefore, be modified. The claim of Respondent No. 1 for his share of the rent will be dismissed. The Appellant will pay costs to Respondents Nos. 2 and 3 in this Court and the decree of the lower Appellate Court with regard to costs will stand.
Latipur Rahman, J.:— I agree
C.C