PRABHU RAM Vs. RAMESHWAR PRASAD SINGH BAHADUR

JUDGEMENT

(1.) The appellants are eight annas co-sharers in a tenure of which the other eight annas co-sharers mortgaged their interest to the landlord of the tenure. The landlord obtained a mortgage decree against that half share. He also obtained rent decrees against the appellants and their co-sharers for the rent of the entire tenure and when he executed his mortgage decree, he put up the half share of his mortgagors to sale and notified at the time of the sale that the properties were being sold subject to a charge for rent under four decrees. The amount of the charge was stated to be Rs. 7780-15-1 1/4. The decree-holder himself became the purchaser of that eight/annas share. Thereafter he applied to execute the rent decrees against, the half share of the appellants for the, full amount of the decrees. An objection was taken that by the sale of the other half share in execution of the decree-holder's own mortgage decree, the entire rent charge had been satisfied and execution could not proceed.

(2.) The Munsif dismissed the objection holding that the rent decree had not been satisfied or the charge extinguished. On appeal, the Subordinate Judge has held that the rent decree should be deemed to have been satisfied to the extent of one- half, because the decree-holder had purchased half of the tenure with notice of the encumbrance of the rent decrees from which decision which governed two execution cases, appeals have been presented by the judgment-debtors claiming that the decrees should be considered to be fully satisfied and cross-objections by the decree-holder claiming that he should be permitted to execute his decrees for the entire amount.

(3.) In the appeal reliance is placed on the Full Bench decision of this Court in Nripendra Nath V/s. Kuldip Misra AIR (1988) Pat 545. It was there held that when in a sale proclamation it was notified that the arrears of rent for subsequent years were an incumbrance, the result would be that the auction-purchaser purchased the holding subject to the incumbrance. It was held further that a landlord auction purchaser was in no better position than a stranger purchaser and therefore he was debarred from bringing a suit for rent for the years of which the rent was stated to be a charge on the holding. That decision follows a decision of the Calcutta High Court in Sailoja Prosad V/s. Gyani Das (1913) 18 CLJ 29 where it was held that a landlord, who purchases the defaulting tenure in execution of his money decree subject to. rent charge, cannot execute his decree for rent as the judgment-debt in his favour for rent is extinguished. The principle on which these decisions proceed was laid down in an earlier decision of the Calcutta High Court in Haradhan Chattorji V/s. Kartik Chandra (1902) 6 CWH 877, the effect of which is that where a tenure or holding is purchased subject to the notification of its liability to arrears the purchaser will be liable for the arrears in question and to hold otherwise would be to make him a gainer at the expense of the defaulting tenant, because the bidding at the sale may be presumed to be affected by the notification.