GOURI SANKAR MUKHERJEE Vs. JATINDRA NATH CHAHRAVARTY

JUDGEMENT

(1.) These appeals in my opinion must succeed. Under the rent decree the decree-holders were obliged to proceed in the first place to sell the tenure in arrears and if that proved insufficient to satisfy the decretal dues, for the balance only the judgment-debtors were made personally liable. It so happened that within six months from the date of the decree the putni was sold under Regulation (8 of 1819) for realization of arrears of rent due for a period prior to that for which the decree was obtained. As matters now stand the putni is gone and I do not see any reason why the decree-holders should not be allowed to proceed against the judgment-debtors personally in accordance with the terms of the decree. It has been strenuously argued on behalf of the respondents that the sale held under the putni regulation at the instance of the decree-holders must be taken subject to the rent decree. This contention, in my opinion is untenable. When a putni tenure is properly and validly sold under the provisions of Regulation (8 of 1819) for arrears of rent due in respect of the same, the purchaser cannot be saddled with the rent charge for any previous period. He takes it free and clear of any such obligation and the utmost that can be said is that, liability for rent for any previous period is transferred to the surplus sale proceeds as was held in the case in Basant Kumar V/s. Khulna Loan Co ( 15) 2 AIR 1915 Cal 24. If in this case there were any surplus sale proceeds the decree-holders would have been only too glad to avail themselves of the same but as there is no surplus left and as we cannot say that the sale itself was held subject to any charge created by the decree, the decree-holders must be allowed to proceed against the other properties of the judgment-debtors.

(2.) Considerable reliance is placed on behalf of the respondents on the decision of this Court in Ratan Lal Biswas V/s. Nafar Chandra Pal ( 22) 9 AIR 1922 Cal 571. In that case there were two consecutive rent decrees, both passed by consent, and the decree-holder expressly promised to satisfy his claim by a sale of the tenure in arrears. The decree-holder purchased the tenure in execution of the first decree which was subsequent to the passing of the second and under these circumstances it was held by this Court that the only way of giving effect to both these decrees which were based on consent of the parties, was that the first sale was subject to the second decree which was passed before it. In the present case the facts are quite different. The landlords when they put up to sale the putni tenure for arrears of rent under Regn. 8 of 1819 were not fettered by any contract embodied in a decree or otherwise. They were pursuing a statutory remedy in accordance with the provisions of the statute and as it is not suggested that there was any fraud or illegality in the matter, I am unable to see as to how they can be deprived of the legal rights which they had acquired under the putni sale. It is said that the putni was sold for an inadequate price but the remedy lay in the hands of the putnidars themselves and it was up to them to come up and get the sale set aside on deposit of the money. I do not see how the same property which has once been sold and purchased by the decree-holder can again be put up to sale for satisfying the debts due to the purchasers by the judgment-debtors. The result therefore is that the appeals are allowed, the decisions of the Courts below are set aside and it is ordered that the decree-holders would be entitled to proceed to execute their decrees personally against the judgment-debtors. The appellants are entitled to their costs. We assess the hearing fee at one gold mohur in each case. Derbyshire, C.J.

(3.) I agree.