CENTRAL CO-OPERATIVE BANK Vs. KASHI SAHU

JUDGEMENT

(1.) The respondents instituted a suit for the sale of mortgaged property to realize their dues under the mortgage. They impleaded as defendants in the suit the mortgagor as defendant 1 and the appellant as defendant 2.

(2.) With regard to defendant 2 it was alleged that this defendant was also a purchaser in execution of a decree passed in a rent suit but that that decree was a money decree and not a rent decree as it was not against all the tenants of the holding or in respect of the entire holding. The suit was not contested by the mortgagor but it was contested by defendant 2. In the result a decree was passed directing the sale of the mortgaged property. When the decree-holders applied to execute this decree defendant 2 raised an objection that the mortgaged property could be sold only subject to his prior charge. The prior charge on which he relies is that conferred by Section 65, Bihar Tenancy Act, on a person who purchases in execution of a rent decree. The objection was upheld by the Munsif but has been overruled on appeal on the ground that defendant 2 cannot be permitted at this stage to agitate this question.

(3.) It is now contended on behalf of appellant-defendant 2 that as the Court which tried the suit has found that the decree in execution of which he purchased in the rent suit was a rent decree, he is entitled to have the priority which the statute confers on him in spite of the course taken during the trial of the suit itself. Now the question whether the owner of a paramount right is precluded from raising the question of his priority by reason of his having been a party to a suit on a mortgage has been the matter of frequent discussion.