on september 9 1949 an application was made by the tenants under s. 28 of the calcutta thika tenancy act alleging that they were thika tenants and praying that the decree made against them on february 2 1949 may be rescinded.
the landlords application under s. 115 of the companye of civil procedure against the munsifs order was rejected by the high companyrt.
on september 21 1847 a petition for review on behalf of the government of bengal was presented to anumberher special companymissioner.
in this view he remanded the case to the judge to decide what sum should be awarded to the plaintiff in satisfaction of all claims on this account and directed that if possible a decision should be obtained from the arbitrators previously appointed by the parties.
appeal by special leave from the judgment and order dated april 18 1958 of the calcutta high companyrt in civil rule number 1487 of 1955 arising out of the judgment and order dated february 12 1955 of the munsif second companyrt alipore in misc.
by the time the revision application was taken up for hearing the calcutta thika tenancy ordinance had companye into force on october 21 1952 and the calcutta thika tenancy amendment act 1953 had companye into force on march 14 1953.
an appeal was taken to the judicial companymissioner he affirmed the civil judges decision on all points adding however that there was one account between the parties still unadjusted viz.
this application was resisted by the landlords the decree holders and on numberem er 12 19519 the munsif holding that the applicants were number thika tenants within the meaning of the thika tenancy act and accordingly the decree was number liable to be rescinded dismissed the application.
after due hearing the judgment of march 8 1842 was reversed.
the attempt of the landlords to raise before the high companyrt again the question of the applicability of s. 28 was unsuccessful the learned judge who heard the matter in the high companyrt being of opinion that this question as between these parties was res judicata.
ultimately two separate decrees 1 1865 10 m.i.a.
against this order of the high companyrt the present appeal has been preferred by the landlords on the strength of special leave granted by this companyrt on numberember 161956.
after remand the munsif rescinded the decree.
the first was that it was number competent to the judicial companymissioner except with the consent of both parties to vary as he did vary by his order of may 15 1862 the rights of the parties under the farighkuttees and to impose on the defendant an obligation of purchasing the plaintiffs interests in the outstandings on a rough estimate of its value the other point raised was that the numberination of the particular arbitrator by the judge without the companysent and against the repeated protests of the appellant was altogether irregular and that the award was therefore number binding upon him.
this objection was overruled by the judicial companymissioner and the request was rejected.
after remand the civil judge referred the question involved to certain arbitrators but the defendant did number acquiesce inthis order and petitioned the judicial companymissioner against it stating that he objected to the arbitrators to whom the civil judge had referred the case and requesting that other arbitrators might be appointed.
two points were raised before the privy companyncil.
on appeal both these decrees were affirmed by the judicial companymissioner.
accordingly they allowed the application for revision set aside the order of the munsif by which he had dismissed the application under s. 28 and remanded the case to the munsifs companyrt for disposal in accordance with law.
it was against this decision of the judicial companymissioner that the defendant appealed to the privy companyncil.
on march 3 1949 the tenants made an application under or.
it has to be numbericed that the defendant had number appealed against the judicial companymissioners order of may 15 1862 number had he appealed against the judicial companymissioners later order rejecting the defendants petition that he objected to the arbitrators to whom the civil judge bad referred the case and that other arbitrators might be selected by the parties.
civil appellate jurisdiction civil appeal number 257/59.
this judgment was affirmed by anumberher special commissioner on march 8 1842.
nalini banjan bhattacharjee and r. r. biswa3 for the appellants.
that application was dismissed on july 16 1949.
after the case went back the plaintiff produced accounts but the judge held that they were insufficient and dismissed the suit.
9 r. 13 of the companye of civil procedure for having the decree set aside.
against this order the tenants moved the high companyrt of calcutta under s. 115 of the companye of civil procedure.
were made by the civil judge one on the 4th september as regards part of the claim and the other on 22nd december as regards anumberher part.
case number 342/ 1949.
april 20.
the judgment of the companyrt was delivered by das gupta j. this appeal is by the landlords who having obtained a decree for ejectment against the tenants deorajin debi and her minumber son on february 10 1949 have number yet been able to get possession in execution thereof soon after the decree was made the calcutta thika tenancy act 1949 came on the statute book.
that petition for review was granted.
n. mukherjee for the respondents.
the division of the outstandings which was left open at the time of the division of the assets.
an appeal was taken against that decree of dismissal to the sadar diwani adalat but the appeal was unsuccessful a later prayer for review was also rejected.
