JNANENDRA NATH SINGHA ROY; SRIMATI BHUBONESWARI DEBI Vs. SRIMATI BHUBONESWARI DEBI; GYANNENDRA NATH SINGHA ROY

JUDGEMENT

(1.) These appeals are directed against a decree in a suit instituted by a darpatnidar against a sepatnidar for recovery of arrears of rant for the years 1322, 1323 and 1324. The defendants urged that they were entitled to a deduction of Rs. 1,989 5-6, desposited by them in Court on the 15 June 1915 in order to satisfy a decree for arrears of rent obtained by the patnidar against the darpatnidar. The Subordinate Judge has given effect to this contention and has decreed the suit in part. The defendants have appealed on the ground that they should have been allowed interest on the sum deposited by them at the rata of 12 per cent. per annum as provided in Clause (a) of Sub-section 1 of Section 171 of tin Bengal Tenancy Act. The plaintiff has appealed on the ground that the Subordinate Judge should not have allowed the deduction claimed unless it was established that when the desposit was made, the sepatnidar was himself not in arrears. In our opinion the contention of the defendants must prevail while that of the plaintiff must be overruled.

(2.) Section 171, so far as it is material for the present purpose, provides as follows: "When any person having, in a tenure or holding advertised for sale under this Chapter, an interest which would be voidable upon the sale, pays into Court the amount requisite to prevent the sale, he shall be entitled to possession of the tenure or holding as mortgagee of the tenant, and to retain possession of it as such until the debt with the interest due thereon, has been discharged." In the case before us, there was a decree obtained by the patnidar against the darpatnidar. If that decree had been executed, the interest of the sepatnidars would have been swept away by the operation of law, as an interest voidable upon a sale held under Chapter XIV of the Bengal Tenancy Act. They were consequently entitled to make the deposit and to obtain an order for possession under Clause (c) of Section 171. This order was made in his favour on the 17 July 1915 in the following terms: "The judgment-debtor does not appear to raise any objection. Let the depositors be delivered possession of Lot Sonatikri in darpatni right till the amount deposited by them with interest at 12 per cent. from the date of deposit is satisfied," The plaintiff contends, however, that she is not bound by this order because before the order had been made, the interest of the darpatnidar, who was the judgment-debtor, had by devolution vested in her, The substance of the matter is that she was a mortgagee of the interest of the darpatnidar. The mortgagor defaulted to make payment, with the result that she instituted a suit to enforce her security, obtained a decree and purchased in due course the right, title and interest of her debtor at the execution sale. This circumstance, however, does not make the order of the 17 July 1915 inoperative against her. The rent due to the patnidar was a prior charge, and bound not merely the darpatnidar but also the mortgagee of the darpatnidar, in the sense that if in execution of the decree for arrears of rent obtained by the patnidar the property had been put up to sale, not only the interest of the darpatnidar but also that of the mortgagee; of the darpatnidar could have been swept out by the operation of the proceedings. Consequently, it cannot be said that the order of the 17 July 1915 was inoperative against She representatives of the judgment- debtor. The execution proceedings are a continuation of the suit and when an order under Section 171 is made, the result is to satisfy the decree in the suit, in other words, to complete the relief granted by the decree to the plaintiff. Reliance has, however, been placed on the following passage from the decision of this Court in Ram Narain Routh V/s. Lal Das Routh 6 C.L.J. 595 : 12 C.W.N. 55: "Although the despositor under Section 171 is entitled upon application to the Execution Court to obtain delivery of possession as against the judgment- debtor who is a party to the proceedings, he is not entitled to an order for delivery as against a person who is a stranger to the proceeding: against such a person his remedy is by a regular suit." The case mentioned is clearly distinguishable. The present plaintiff is the representative- in-interest of the judgment-debtor in the suit for arrears of rent instituted by the patnidar and cannot be treated as a stranger to the proceeding. Assume that she might have applied to the Execution Court to vacate the order of the 17 July 1915 on the ground that the order had been obtained by fraud, but no sash application was ever made. Even after the suit had been instituted on the 16 April 1918, when she had been unquestionably apprised of the order, no steps were taken by her, She cannot consequently now turn round and contend that the order is not operative against her. If the order stands, there can be no doubt that the deduction allowed by the Subordinate Judge is legitimate. The effect of the order of the 17 July 1915 was to place the sepatnidars in possession of the darpatni, in other words, the sepatnidars became entitled to set off the rent payable by them as. against the rent recoverable by the darpatnidar from them. The consequence follows that when the darpatnidar puts forward her claim against the sepatnidars, as has been done in this case, the sepatinidars are entitled to claim a set-off. This is the view adopted by the lower Court and it cannot be successfully challenged.

(3.) The appeal preferred by the plaintiff (No. 121 of 1919) must accordingly be dismissed with costs. We assess the bearing fee at three gold mohurs. As regards the appeal preferred by the defendants (No. 101 of 1919), it is clear that the decree of the lower Court must be amended by allowing the defendants interest at the rate of 12 per cent. per annum on the sum deposited. There will be no separate order for costs in this appeal. Buckland, J.