GIRIDHARI MOHANTY Vs. ABDUL KHAN

JUDGEMENT

(1.) It is a defendant 1's appeal in a suit for declaration of title and recovery of possession of the disputed property which constitutes an occupancy holding in Touzi No. 3019 in the district of Cuttack. Defendant 5 was the original owner of the occupancy holding. He had usufructorily mortgaged the same to defendent 2 and father of defendant 3 who were recorded mortgagees. Ultimately, defendants 6 to 9 purchased the holding in execution of the mortgage decree before 1938. An ex parte decree in a rent suit was obtained against the recorded tenants on 27-8-1941. The decree was put into execution on 3-1-1941 in which an order to issue attachment against the holding was passed on 4-41941. The attachment was effected on 30-4-1941. Before effectuation of the attachment and after the commencement of the execution, that is, on 25-41941, the plaintiff purchased the holding and it can be premised without any controversy that by such purchase he acquired the right of occupancy and all other rights appurtenant thereto under the provisions of Schedule 0A, Orissa Tenancy Act. The section provides that such transfers (of occupancy holding of a ryot, or a portion of share) shall carry with it the occupancy right in the holding and all the rights appurtenant thereto. The transfer, referred to in Schedule 0A, has to be effected notwithstanding the provisions of the T. P. Act in the manner provided in Schedule 1. The latter section provides that the registration of the transfer deed made compulsory in case of sales of occupancy holdings of any valuation must be accompanied with a notice to the landlord. So in the case of auction sales. The object behind this specific provision as to the mode of transfer being to make it binding on the landlord for all purposes and to all the extent for which such binding character is needed under the provisions of the Orissa Tenancy Act. It has been found by the Courts below and has not been controverted at the Bar that the requisite notice had been given to the landlord on 9-5-1911. The auction sale was held In pursuance of the execution case already referred to long after this notice. The auction- purchaser, namely, the appellant took possession through Court and thereby dispossessed the plaintiff. Hence this suit. The suit was decreed by both the Courts below. Hence this appeal by defendant 1 who was the only contesting defendant.

(2.) Mr. Pal, appearing for the appellant, raised certain very interesting points of law. The pith and substance of his argument is that rent being a first charge on the holding, his purchase in execution of the rent decree should prevail over the private purchase of the plaintiff who must be held bound by the execution proceeding and by the order passed in the said proceeding resulting in the sale of the disputed holding. He supplements his contention by invoking the aid of doctrine of lis pandens as enacted in Schedule 2, T. P. Act. According to him, notwithstanding the plaintiff's purchase during the pendency of the execution proceedings, the holding passed to him under the provisions of Schedule 4 read with Schedule 12, Orissa Tenancy Act.

(3.) This contention, with equal strenuousness is repelled by Mr. S. P. Mohapatra, counsel for the respondent, who contends that the doctrine of lis pendens is not attracted to the facts of the present case as neither the suit for recovery of rent nor the execution proceedings arising therefrom are such suits or proceedings as are contemplated in Schedule 2, T. P. Act, as no right to immovable property was at any moment in dispute as between the parties thereto. He, however, contends that in order to pass the occupancy holding at the sale, the conditions necessary under the provisions of 3. 212, Orissa Tenancy Act, are that the relationship of landlord and tenant shall continue till the date of sale which did not happen in this case as the holding had been effectively sold with notice to the landlord before the relevant date. At the date of sale, the judgment-debtor in the suit was no longer the ryot and was not representing the holding. The position of law is too well settled to be controverted that at the time of sale in execution of a decree for recovery of' rent, the entire landlord's interest and also the) ryoti interest should be represented respectively by the decree-holder as well as the judgmentdebtor. Anyone of these parties having ceased to have either the landlord's interest or the ryoti interest, as the case may be, the execution and the sale thereunder should lose the character of being an execution of a rent decree as such with the result that the sale will not pass the holding or the tenancy, as the case may be.