AKSHOYA KUMAR DAS Vs. JAGADISH MISRA

JUDGEMENT

(1.) This second appeal is by defendants 3 and 4, the landlord auction purchasers of an occupancy holding in execution of a rents decree obtained by them, in a suit for enforcement of a mortgage executed by the occupancy ryot on 18th May 1929 in favour of the plaintiff. The plaintiff s suit, filed on 15th June 1942, seeks to enforce the mortgage not only against the mortgagor or his successors-in-interest but also the landlord-auction-purchasers mentioned above.

(2.) The defence of the appellants is that they possess a superior right in respect of the occupancy holding and their purchase is free from mortgage. This contention is based upon two grounds: (i) that they are the sole landlords of the occupancy holding which was non-transferable at the time when this mortgage was executed and as such is not binding against them nor can it affect the interest acquired by them at the execution sale ; and (ii) that they have, by recourse to legitimate measures prescribed in Section 221, Orissa Tenancy Act, annulled the mortgage as an encumbrance.

(3.) The suit had been dismissed by the trial Court but has been decreed by the learned lower appellate Court. Hence this second appeal.