GOPAL LAL CHANDRA Vs. AMULYAKUMAR SUR

JUDGEMENT

(1.) The plaintiff instituted this suit for enforcement of a mortgage bond in his favour, of which the consideration was made up of his dues upon seven promissory notes and a cash amount of Rs. 8,000 odd, and upon four subsequent mortgages in his favour on deposit of title deeds. The moneys were taken and the bonds were executed by one Taraknath Banerji, defendant 1 in the suit, who held the mortgaged properties under defendants 3 to 6 under a dar mourasi mokarrari lease. The latter purchased the properties in execution of a decree for arrears of rent against defendant 1. The plaintiff's case was that the said purchase was made with knowledge and notice of the encumbrances in plaintiff's favour and that in law and equity the purchasers were bound to pay up the plaintiff's dues. He prayed for a preliminary decree for sale with liberty reserved to apply for a personal decree for the balance.

(2.) Defendant 2 disclaimed all interest in the mortgaged properties. He, as well as the other defendants, namely, Nos. 3 to 6, alleged that they had no knowledge or notice of the encumbrances prior to the sale, that the sale was held in execution of a decree for rent in accordance with the provisions of the Bengal Tenancy Act with power to the purchasers to avoid all encumbrances, that they got notice of the encumbrances, when they received the notices through Court in connexion with the present suit and they, thereupon annulled the encumbrances by proceeding under Section 167 of the Act. The Subordinate Judge has made a decree for money in plaintiff's favour against defendant 1 and has dismissed the suit against defendants 2 to 6. The plaintiff has appealed.

(3.) The first contention of the appellant is that the decree, in execution of which defendants 3 to 6 made the purchase, was not a decree for rent contemplated by the Bengal Tenancy Act and the sale in execution also had not the effect of a rent sale thereunder. This contention is pressed on several grounds, which will be noticed presently. But before doing so it will be convenient to state a few facts.