JOG NARAIN SINGH Vs. BADRI DAS

JUDGEMENT

(1.) This is an appeal on be-half of the defendants in an action commenced by the plaintiffs for recovery of a sum of money alleged to have been paid by them under Section 310A of the Code of Civil Procedure of 1832, to set aside a sale in execution of a decree for arrears of rent. It appears that the plaintiffs were mortgagees of the properties in respect of which the landlord obtained a decree for arrears of rent. The plaintiffs sued to enforce their securities and obtained decree on the 29th January 1901 and the 8th February 1904. Meanwhile the mortgagors, now appellants before us, defaulted to pay rent to the superior landlord who obtained a decree against the registered tenant on the 7th December 1901. On the 16th July 1903 and the 11th April 1904, two sums were paid by some of the judgment-debtors towards partial satisfaction of the rent-decree but as the debt was not satisfied in its entirety the landlord decree-holder proceeded to sell the tenure on the 21st December 1904. The plaintiffs thereupon deposited on the 20th January 1905 a sum sufficient under Section 310 A of the Code of 1882, for the reversal of the sale. The sale was accordingly set aside on the 11th February 1905. On the 20th January 1908, they commenced the present action for recovery of the money they had deposited together with interest and costs.

(2.) The Courts below have concurrently decreed the suit. In the present appeal, that decree has been assailed on the ground that the payment was voluntary and the plaintiffs are not entitled to ask for restitution from the defendants. In our opinion, there is no substance in this contention. The learned Vakil for the appellants has argued that, inasmuch as the plaintiffs had obtained decrees on the footing of their securities, they were not liable to have their interest affected by the sale in execution of the rent-decree, and that in substance they had no interest to protect. It has not been disputed and, in view of the decision of a Full Bench of this Court in the case of Paresh Nath Singha v. Nobo Gopal Chattopadhaya 29 C. 1 it cannot be disputed, that if the plaintiffs had not obtained a decree on the basis of their mortgage, they would have been entitled to have the sale set aside under Section 310A. The question, therefore, arises whether the fact that they had obtained decrees, in any way altered their position.

(3.) Section 159 of the Bengal Tenancy Act provides that where a tenure or holding is sold in execution of a decree for arrears due in respect thereof the purchaser shall take subject to the interests defined in Chapter XIV, as " protected interest" but with power to annul the interests defined in that Chapter as "encumbrances." Section 161 then lays down that the term "encumbrance" used with reference to tenancy means any lien, sub-tenancy, easement or other right or interest created by the tenant on his tenure or holding or in limitation of his own interest therein, and not being a protected interest as defined in station 160. It cannot be disputed that a mortgage created by a tenant is a lien on his tenure or holding and is, consequently, an encumbrance within the meaning of Section 161. It has been suggested, however, that as soon as mortgagee obtains a decree, he ceases to have any lien on the tenure or holding, in other words, that his interest is no longer an encumbrance on the tenure within the meaning of Section 161, This contention is obviously unfounded. It was pointed out by this Court in the case of Bibijan Bibi v. Sachi Bewa 21 C. 863 that the security is not extinguished till the sale has taken place in execution of the mortgage-decree and the proceeds have been distributed in satisfaction of the sum due to the mortgagee. This principle was applied in the case of Surjiram Marwari v. Barhamdeo 2 C.L.J. 202 and Bhawani Koer v. Muthura Prasad 7 C.L.J. 1 and is in fact supported by the decision of Lord Ellenborough in Drake v. Mitchell 3 East 251 : 7 R.R. 449 that a judgment recovered in any form of action is still but a security for the original cause of action until it be made productive in satisfaction to the party. If we were to give effect to the contention of the appellant, the result would be that as soon as a mortgagee obtains a decree on his security, his position becomes worse than what it was when he was a mortgagee, pure and simple. It has not been disputed, as we have already observed, that as mortgagee he would have encumbrance liable to be annulled by the purchaser at the sale for arrears of rent. It cannot also be disputed that if he purchased the property in execution of his own decree, his interest would be equally liable to be annulled by the purchaser at the sale in execution of the decree for arrears of rent, although such decree was obtained against the registered tenant. But, it is suggested, that his intermediate position is different; that is, after the decree has been obtained, he would have no lien at all on the property. We are not able, for the reasons stated, to give effect to this contention as well- founded on principle.