OFFICIAL TRUSTEE OF BENGAL Vs. PURNA CHANDRA ROY

JUDGEMENT

(1.) This is an appeal by the decree-holder in a rent execution case against an order of the Subordinate Judge of Birbhum passed under the following circumstances : The appellant obtained a decree for rent in Rent Suit No. 2 of 1924 in respect of a sepatni tenure of which he was the landlord. The tenure was sold and a sum of Rs. 7,005 realized. Deducting the plaintiff's claim under the decree, a sum of Rs. 5,267 odd was left outstanding as surplus sale- proceeds in favour of the defendant. The tenure was sold on 15 August 1927 and the sale was confirmed on 17 September 1927. Before the sale of the tenure the plaintiff had instituted another rent suit being Suit No. 12 of 1927 for rent due from May 1925 to May 1927 for Rs. 3,900. The Suit No. 12 of 1927 was decreed after the confirmation of the sale on 17th September 1927 and the appellant attached the sale-proceeds deposited in Court in execution of that decree. In the meantime . the respondent who held a previous mortgage of the tenure from the tenant brought a suit upon the mortgage and obtained a preliminary decree in September 1927 and the final decree in November 1927. On 15 November 1927 the respondent in execution of his mortgage decree attached the sum of Rs. 5,093 out of the sum in deposit in Court as surplus sale proceeds. It should be noted here that for the rent for the period from January 1924 to May 1925 the appellant was paid a certain amount out of the sale proceeds under Section 169, Ben. Ten. Act.

(2.) Both parties having applied to the executing Court for payment of the surplus sale- proceeds the question that arose between the parties was as to which of them had the claim to the amount. The appellant claimed to have preference over the claim of the respondent on the ground that his decree was a rent decree. The respondent on the other hand claimed that the surplus sale proceeds should be paid to him under Section 73, T. P. Act. The learned Subordinate. Judge examined the claim of both the parties and held that the respondent, mortgagee decree-holder, had the right to the surplus sale proceeds in preference to the appellant. From this order this appeal has been preferred. A preliminary objection has been taken on behalf of the respondent that no appeal lies in this case the order passed by the lower Court being one under Order 21, Rule 58, Civil P.C. The appellant on the other hand contends that the question decided by the Court below was one under Section 47, Civil P.C., and as such is appealable.

(3.) The question therefore that falls for determination is whether the order appealed from is one under Section 47 and as such open to appeal. Section 47 contemplates questions arising between parties to the suit or their representatives; and it has been argued on behalf of the appellant that the respondent in this case is a representative of the judgment debtor in his rent decree. Now the expression "representative" in the section has not been defined in the Code, but it has been judicially interpreted in the Pull Bench case of Ishan Chandra Sirkar v. Beni Madhab Sirkar [1897] 24 Cal 62 where it has been defined as meaning not only the judgment-debtor's legal representative that is his heir, executor or administrator but it also means his representative-in-interest and includes the purchaser of his interest who so far as such interest is concerned is bound by the decree. The question as to when a party may be said to be bound by a decree has been decided in a number of cases. The view that prevailed for a long time was as expressed in W. Sheriff V/s. Dina, Nath Mukherjee [1886] 12 Cal. 258 that a lessee, purchaser mortgagee or transferee since the decree is a representative of the judgment-debtor within the meaning of Section 47. But the Pull Bench case of Ishan Chandra Sircar V/s. Beni Madhab Sirkar [1897] 24 Cal 62 has given it a wider meaning as including a person who may by operation of law or in fact be bound by the decree though his interest had accrued previous to the decree : see the case of Surendra Narain Singh V/s. Gopi Sundari Dasi [1905] 32 Cal. 1031.