AJODHEYA LAL MAHASETH Vs. MAHANTH BRIJ KISHORE DAS

JUDGEMENT

(1.) The appellants are the decree-holders in a rent suit. The principal respondent is a person who was not a defendant in the suit but purchased the rent claimed holding on 7 December 1937, in execution of his own mortgage decree obtained against the tenant of the holding who was the defendant of the rent suit. The date of institution of the rent suit was 21 September 1937. The date when the respondent bought the holding was 7 December 1937 and the date of the decree in the rent suit was 28 April 1938. The decree-holder applied to execute the decree and wished to make the respondent a party as transferee and thereby representative-in-interest of the judgment-debtor.

(2.) The respondent had brought his purchase to the notice of the landlord decree- holder by paying the transfer fee and selami in accordance with the provisions of the Bihar Tenancy Act, as amended and the landlord, as he was bound to do, had accepted these fees. The respondent objected and prayed that his name be expunged from the execution proceeding on the ground that he was a purchaser subsequent to the decree. The dates which I have just given show that the respondent is not a purchaser subsequent to the decree but a purchaser pendente lite. The Munsif in dealing with the objection observed that payment of the landlord's fee would not relieve the holding from the liability to pay previous arrears of rent due on it for which the decree under execution has been passed. He said: Of course the purchaser is not personally liable but previous arrears are always a charge on the holding and his purchase is subject to that charge. Section 73, of the new Bihar Ten. Act, is quite clear on the point. All this is however, no ground for making the objector a party to the execution proceedings.

(3.) The District Judge affirmed this decision referring to the provision in Section 73 of the Act which lays down that the transferor is liable for all arrears due before the date of the transfer and said that the real person liable for the payment of rent is the original tenant who is the judgment-debtor and not the purchaser of the holding i.e., the respondent. The District Judge did not consider the provision of the Act which makes rent a first charge on the holding in whosesoever hands the holding may be. In appeal it is argued that Section 47, Civil P.C., applies to the decision of all questions relating to the execution, discharge and satisfaction of the decree arising between the decree-holder and the judgment-debtor or their representatives and the expression "representatives" is not limited to the legal representatives of a deceased person but includes persons on whom an interest has devolved by assignment, transfer or otherwise.