1. A Putni, belonging to the defendants other than thedefendant No. 1, was sold by the defendant No. 1, the Maharaja of Burdwan, underthe provisions of Regulation VIII of 1819 for arrears of rent. In due course,the Putnidars instituted a suit to have the sale set aside, and the sale wasset aside in proceedings properly taken under Section 14 of the PutniRegulation. To those proceedings the plaintiffs, who had purchased the Putni atthe sale, were made parties. In the decree made by the Court, it was directedthat the Maharaja should refund to the present plaintiff who were theauction-purchasers the purchase-money which they had paid, amounting to Rs. 600with interest. It was further directed that the original Putnidars were torecover possession of the property from the present plaintiffs with mesneprofits. In that connection, there was an important direction in the judgment whichthe Court delivered. The amount of mesne profits, says the learned SubordinateJudge, "will be ascertained in execution when the amounts spent bydefendants in connection with the Putni for the management and payment of rentand other necessary things will be taken into account." The Court,therefore, clearly contemplated that when the mesne profits payable by theplaintiffs were ascertained the plaintiffs would put forward theircounter-claim on account of rent and other outgoings. We are told that thedecree was put in execution for the mesne profits. But the present plaintiffsin those proceedings omitted and, in our opinion, wrongly omitted to make anyclaim for the amount of the rent which they had paid to the Maharaja during theperiod for which they were in possession and in receipt of the profits. Insteadof making that claim at that appropriate time, they brought the present suit inwhich they sue the Maharaja of Burdwan and the original Patnidars for the sumwhich they paid to the Maharaja by way of rent. There appear to us to beseveral answers to the suit, more than one of which is fatal to the plaintiffscase.

2. In the first place, the suit was instituted more thanthree years after the date of the decree of the first Court setting aside thePutni sale. It was also instituted more than three years after the last of thepayments made on account of rent. "Whether, therefore, Article 62 orArticle 97 of the Limitation Act applies, the suit is barred by limitation. Inthat connection we need only refer to the recent decision of the Privy Councilin Hukum Chand Boid v. Pirthichand Lal 50 Ind. Cas. 444 [LQ/PatHC/1919/26] : 23 C.W.N. 721 : 17A.L.J. 514 : 36 M.L.J. 557 : 21 Bom L.R. 632 : (1919) M.W.N. 258 : 30 C.L.J. 71: 46 C. 670 : 26 M.L.T. 131: 10 L.W. 416 : 46 I.A. 52 (P.C.).

3. The same case is also authority for the proposition thata suit for rent paid to the Zamindar by the auction purchaser of a Putni duringhis period of possession will not lie against the Zemindar. We see nothingcontrary to Justice or good conscience in the Maharaja of Burdwan keeping therent which has been paid to him by the plaintiffs. Apart from that, the pointis, in our opinion, conducted by the decision of the Privy Council.

4. Then, there is the further question whether, under Section14 of the Putni Regulation, a separate suit of this kind is admissible. In thecase to which we have already referred the Privy Council appear to us to haveexpressed a strong inclination in favour of the view that the remedies providedby Section 14 are exclusive, Their opinion is no doubt expressed in guardedlanguage. But apart from some such countervailing, consideration, as a long anduninterrupted course of practice, we apprehend that their Lordships aredisposed to regard the remedies provided by the Regulation as the only remedieswhich the law provides. In view, however, of the finding already arrived at onthe subject of limitation, it is unnecessary for us to express a final opinionon that question in the present case. The learned Vakil for theauction-purchasers, the plaintiffs, relied on the decision of this Court inRadha Madhub Samonta v. Sasti Ram Sen 26 C. 826 829 : 13 Ind. Dec. (N.S.) 1129,where the claim was made against the original Putnidars. We may point out thatthere is an earlier decision of this Court with a contrary implication inSuresh Chandra Mukhopadhya v. Akkori Singh 20 C. 746 : 10 Ind. Dec. (N.S.) 503.This case does not appear to have been cited before the Bench which decided thelater case. Reference may also be made to Tara Chand v. Nafar Ali 1 C.L.R. 236.

5. As regards the original Putnidars, who were alsoimpleaded as defendants in this suit, the plaintiffs appear in the Court belowto have given up their claim as against them. The learned Vakil who appears forthe plaintiffs before us has pressed us somewhat strongly to exercise in favourof the plaintiffs the power given to an Appellate Court by Rule 33 of Order,XLI, Civil Procedure Code. In view, however, of the fast that the plaintiffsmade no claim in the execution proceedings and that we are not acquainted withall that took place in those proceedings, and also in view of the grave doubtwhich arises whether such a suit lies, we are unable to accede to his request.Moreover, the claims against the Putnidars would also, it appears, be barred bylimitation under Article 61.

6. In the result, we set aside the judgment and decree ofthe Court below and dismiss the plaintiffs suit. The appellant, the defendantNo. 1, is entitled to his costs in this Court and in the Court below. We assessthe hearing fee in this Court at five gold mohurs.

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Bejoy Chand Mahatab Bahadurvs. Tinkari Banerjee and Ors.(12.02.1920 - CALHC)