SITAL CHANDRA MAJHI Vs. PARBATI CHARAN CHAKRABARTI

JUDGEMENT

(1.) These are three appeals under Clause 15 of the Letters Patent from the judgment of Mr Justice Newbould in three connected second appeals in suits for recovery of possession of land upon declaration of title. The disputed lands are comprised in a holding held by three brothers, Bhut Nath Mal, Akahay Kumar Mal and Hari Charan Mal, under one Premamayi Dasi, now deceased. On the 9 September 1901 the Mala mortgaged a portion of their holding, comprising an area of 9 bighas 9 1/4 cottahs cut of 11 bighas 18 1/2 cottahs of land, to the respondent, Parbati Charan Chiskrabarti. On the 14 September 1914 the mortgagee obtained a decree on his mortgage against the mortgagors. On the 12 May 195 the mortgagee decree- holder purchased the hypo hecated property at the execution sale which was confirmed due course on the 24 June 1915. The purchaser however, was resisted by the defendants-appellants when be attempted to take delivery of possession through the Court. This resulted in a proceeding under Order XXI, Rule 100 of the Civil Procedure Code which terminated against the purchaser on the 23 September 1916. The purchaser accordingly instituted the present suits on the 26 September 1917. The defendants repelled the claim of the plaintiff on the allegation that they were lessees under a person who had purchased the entire holding of the Mals at a sale held in execution of a decree for arrears of rent. It appears that the Mals defaulted to pay rent to their superior landlord, with the result that the executor to the estate of Premamayi Dasi obtained a decree for rent against them. The holding was sold in execution on the 13 January 1904, when the landlord became the purchaser. The sale was confirmed on the 7 May 1904, and thereafter the defendants took settlement of different parcels op the 22 November, 1906, the 28 November 1906 and the 17 January 1907. The defendants pleaded in answer to the claim of the plaintiff that his title on the basis of the mortgage could not prevail against their title on the basis of the rent-decree. The Trial Court overruled this contention and decreed the suitse. On appeal the Subordinate Judge reversed the decision and dismissed the suits. On second appeal to this Court, Mr. Justice Newbould has reversed the decision of the Subordinate Judge and restored the decrees of the primary Court. On the present appeals under the Letters Patent, the opinion expressed by Mr. Justice Newbonld has been assailed as founded on an erroneous view of the relative rights of the parties.

(2.) The Subordinate Judge adopted the view that the effect of the sale in execution of the rent-decree was to destroy forthwith the mortgage held by the plaintiff. This was clearly erroneous. 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 as protected interests hub with power to annul the interests defined as incumbrances, with the reservat on that the power to annul shall be exercisable only in the manner directed by Chapter XIV. Section 167 prescribes the procedure to be adopted for annulling an incumbrance. A purchaser, having power to annul an incumbrance and desiring to annul the same may, within one year from the date of the sale or the date on which he first has notice of the incumbrance, whichever is later, present to the Collector an application in writing requesting him to serve on his incumbrancer a notice declaring that the incumbrance is annulled. The Collector, on receipt of the prescribed fee, shall cause the notice to be served in compliance with the application, and the incumbrance shall be deemed to be annulled from the date on which it is so served. It is consequently plain that a sals for arrears of rent does not ipso facto cancel the incumdrance, and this was ruled in Bent Prosad Sinha v. Rewat Lall 26 C. 743 : 12 Ind. Dec. (N.S.) 1165; Kalikananda Mukherjee V/s. Bipro Bat Pal Choudhuri 26 Ind. Cas. 436 : 21 C.L.J. 265 : 19 C.W.N. 18 and Pran Krishna V/s. Atul Krishna 46 Ind. Cas. 176 : 22 C.W.N. 662. The procedure provided by Section 167 is the only mode of annulling the incumbrance, and the purchasers must have recourse to the prescribed mode within the specified period, if he desires to annul the incumbrance: Soshi Bhusan Guha v. Gogan Chunder Shaha 22 C. 364 : 11 Ind. Dec. (N.S.) 244. In the case before us the defendants contended that the effect of the sale for arrears of rent was to sweep away the mortgage held by the plaintiff. This position was entirely untenable. There is no indication that the landlord- purchaser at the rent sale who, as pointed out in Pran Krishna V/s. Atul Krishna 46 Ind. Cas. 176 : 22 C.W.N. 662, if, like any other purchaser, bound to follow the provisions of Section 167, has ever exercised the option vested in him. There is thus no escape from the position that on the expiry of one year from the date of the rent-sale the from the date when the landlord had notice of the incum-brance, the mortgage could not be annulled. From that date onwards, the holding in the hands of the landlord purchaser would be subject to a mortgage no longer liable to be impeached or extinguished: Bidhumukhi Dasi V/s. Bhaba Sundari Dasi 59 Ind. Cas. 868 : 24 C.W.N. 961.

(3.) Dr. Kanjilal has, however, contended that whatever the position of the mortgagee might have been if ha had continued to be a mortgagee, he has lost the protection hi might have enjoyed as an incumbrancer, by reason of the mortgage-decree and the mortgage-sale. In support of this view, reliance has been placed upon the decisions of the Judicial Committee in Chet Ram V/s. Shadi Ram and Matru Mal V/s. Durga Kunwar 55 Ind. Cas. 969 : 47 I.A. 71 : 32 C.L.J. 121 : (1920) M.W.N. 338 : 18 A.L.J. 396 : 38 M.L.J. 419 : 11 L.W. 529 : 2 U.P.L.R. (P.C.) 75 22 Bom. L.R. 553 : 42 A. 364, 27 M.L.T. 319 : 25 C.W.N. 397 (P.C.). These oases are clearly distinguishable and are of no assistance to the appellants, as they are authorities only for the proposition that a decree, made under Section 89 of the Transfer of Property Act, for the sale of mortgaged property has the effect of substituting the right of sale there by conferred upon the mortgagee for his lights under the mortgage, and the latter rights are extinguished. Bat, as pointed out by the Judicial Committee in Sukhi V/s. Munshi Ghulam Safdar Khan 65 Ind. Cas. 151 : (1921) M.W.N. 445 : 14 L.W. 162 : 43 A. 489 : 25 C.W.N. 279 : 42 M.L.T. 15 : 30 M.L.T. 175 : 24 Bom. L.R. 590 : (1922) A.I.R. (P.C.) 11 : 48 I.A. 465 (P.C.), this has no application to cases of sales under C. XXXIV of the Civil Procedure Code which has re-placed the group of sections 85-90 inclusive, of the Transfer of Property Act. The words "and thereupon the defendant's right to redeem and the security shall both be extinguish. ed, " which occurred at the end of Section 89 of the Transfer of Property Act, do not occur in Order XXXIV, Rule 5, Civil Procedure Code. In these circumstances the law remains as it certainly was before the Transfer of Property Act, 1882, namely, that an owner of a property who is in the rights of a first mortgagee and of the original mortgagor as acquired at a sale under the first mortgage is entitled, at the suit of a subsequent mortgagee who is not bound by the sale or the decree on which it proceeded, to set up the first mortgage as a shield. This does not militate against the decision of the Judicial Committee in Bhawani Kumar V/s. Mathura Prasad Singh which was applied in Sabjan Mandul V/s. Haripado Saha 66 Ind. Cas. 103 : 25 C.W.N. 424. In the events which have happened here, it cannot be maintained that the incumbrance had become extinct and lost in the mortgagee's overriding right when he became the complete owner of the lands. In our opinion, the relative rights of the purchaser at the rent sale and the mortgagee must be determined with reference to their position at the time of that sale. The purchaser acquired the statutory right to annul the mortgage within a prescribed period; he has not availed himself of the privilege. Ha consequently holds the property subject to the mortgage and is entitled to redeem : Bidhumukhi Dasi V/s. Bhaba Sundari Dasi 59 Ind. Cas. 868 : 24 C.W.N. 961. The mortgagee has obtained a decree on his mortgage and has purchased the equity of redemption. This does not bind the purchaser at the sale for rarer of rent, in the sense that it does not extinguish his right to redeem the mortgage, as he was not a party to the mortgage suit: Brojonath Koondoo Chowdry V/s. Khelut Chunder Ghose 14 M.I.A. 144 : 16 W.R.P.C. 33 : 8 B.L.R. 104 : 2 Suth.P.C.J. 480 : 2 Sar.P.C.J. 711 : 20 E.R. 740; Umes Chunder Sircar V/s. Zahar Fatima 17 I.A. 201 : 18 C. 164 : 6 Sar. P.C.J.507: 9 Ind. Dec. (N.S.) 110 (P.C.); Gobind Lal Roy V/s. Ramyanam Misser 20 I.A. 165 : 21 C. 70 : 17 Ind. Jur. 536 : 6 Sar.P.C.J. 356 : 10 Ind.Dec. (N.S.) 679 (P.C.); The Hnyin V/s. Maung Mya Su 5 Ind. Cas. 151 : 37 C. 239 : 11 C.L.J. 166 : 14 C.W.N. 254 : 3 Bur.L.T. 27 : 12 Bom.L.R. 234 : 20 M.L.J. 153 : 37 I.A. 19 (P.C.); Jugdeo Singh V/s. Habibullah 6 C.L.J. 612 : 12 C.W.N. 107; Kalu Sharif V/s. Abhoy Charan 62 Ind. Cas. 445 : 25 C.W.N. 253, The landlord purchaser is also not a party to these suits and a decree for redemption cannot consequently be made in his favour. On the other hand, the only defense put forward by the defendants, namely, that the mortgage which is the root of the title of the plaintiff was extinguished ipso facto by the rant-sale, cannot be sustained. There is accordingly no answer to the claim for recovery of possession put forward in this suit by the plaintiff;. Kalu Sharif V/s. Abhoy Charan 62 Ind. Cas. 445 : 25 C.W.N. 253. We do not, however, decide how far and on what terms ha is liable to be redeemed in a suit appropriately framed in that behalf either by the defendants or by their landlord.