UDAYANARAYAN PATI Vs. RADHASHYAM MANGARAJ MAHAPATRA

JUDGEMENT

(1.) Defendants 1 to 5 are the appellants of whom defendant 3 is dead and the other defendants on record are his legal representatives. The plaintiff brought a suit for declaration of title and recovery of possession under the following circumstances. The plaintiff is a cosharer landlord of the estate within the ambits of which the disputed holding lies. He instituted rent Suit No. 5633 of 1927-28 for recovery of his share of rent but impleaded 12 other cosharer landlords as pro forma defendants in order to constitute the suit in the form conformable to the provisions of Section 199 of the Orissa Tenancy Act. He obtained a decree and there is no dispute that the said decree was a rent decree and would carry the same effect as that obtained either by a sole landlord or the entire body of landlords for the total arrears of rent due in respect of the holding. As the holding, however, had been mortgaged to the appellants in the year 1914 and a suit for enforcement of the mortgage was instituted on 28th May 1927 being Original Suit (Mortgage) No. 232 of 1927, the mortgagee obtained a preliminary decree on 5th November 1927 and the same was made absolute on 17th November 1928. After the preliminary decree in the mortgage suit and-before the same was made final, the plaintiff, as a cosharer landlord put the aforesaid rent decree into execution and himself became a purchaser at the execution sale, on 16th May 1928. The plaintiff took delivery of possession through Court, on 18 th August 1928, and continued in possession till he was dispossessed by the appellants on 20th August 1941, while the defendants mortgagees took possession of the disputed property as auction purchasers in execution of the final mortgage decree--the auction sale having taken place on 15th March 1940. The plaintiff wanted restoration of possession by an application to the executing Court before whom the mortgagedecree- execution was pending under Order. 21, Rule 100, Civil P. C. He lost the proceeding, by an order of the executing Court, dated 17th January 1042. He instituted the present suit, on 13th January 1943.

(2.) Both the Courts below have decreed the plaintiff's suit finding that as an action purchaser, in execution of a rent decree, he acquired the holding under Section 212, Orissa Tenancy Act, and, as such, be purchased it free from all encumbrances, the disputed mortgage being one such encumbrance. The defendants have come up in second appeal.

(3.) The crucial point for consideration is whether the Courts below are right in coming to the conclusion that the rent decreee already referred to was executed, in compliance with the provisions of Section 212, Orissa Tenancy Act. There can be no manner of doubt that the provisions of the section are mandatory, and it must have to be examined in the present case whether the procedure adopted for the execution was or was not in contravention of the said provisions. The relevant portion of the section, that is, Sub-section (2), of the section, reads: