MIDNAPORE ZAMINDARI CO LTD Vs. CHINTAMONI MANDAL

JUDGEMENT

(1.) This appeal by the decree, holder is directed against the concurrent orders of the Courts below refusing to execute the decree which he holds against the respondent for rent of a tenure khewat No. 4 for a period beginning some time in 1986 and extending up to 30 May 1937, the date on which the tenure was put to sale in execution of an earlier decree for its own arrears of rent up to some time in 1936 and was purchased by the present decree-holder who is the landlord of the tenure. The judgment-debtor objected that as the landlord had purchased the tenure and as the rent of the tenure was a charge on the tenure itself, therefore the landlord purchaser was the person responsible for the rent of the period between 1936 and the auction purchase and could not recover this amount from other assets of the sold up tenant.

(2.) He succeeded in getting the assent of the executing Court to this proposition by citing the Pull Bench decision in Nripendra Nath V/s. Kuldip Misra A.I.R. 1938 Pat. 545, but that decision is not authority for the broad proposition sought to be based on it for two reasons: first, it is clear that the question of liability of the holding itself in the hands of the auction purchaser for arrears of rent for a period anterior to the date of the sale depends on its having been put up to sale with notice that it is saddled with such liability; that is to say it depends on what was put in the sale proclamation as to whether dues up to the date of sale are to be treated as a liability on the holding or not. If there is nothing in the sale proclamation to indicate that the tenancy is being sold saddled with a liability for dues to the date of the sale, then it is difficult to see any reason why the tenant who has enjoyed the usufruct of the holding right up to the date of the sale should be allowed to do so free of any rent for the-period between the date of the suit and the date of the auction sale.

(3.) Indeed when the tenancy is of value substantially more than the amount of the rent decree, it is quite clearly laid down in Section 169, Bihar Tenancy Act, that the surplus sale proceeds after satisfying the decree will next be devoted to paying to the decree-holder any rent which may have fallen due to him in respect of the tenure or holding between the institution of the suit and the date of the confirmation of the sale ( Section 169(1)(c), Bihar Tenancy Act). These surplus sale proceeds would be put for this provision as asset of the judgment-debtor. Therefore it is clear that the Bihar Tenancy Act recognizes the liability of the assets of the judgment-debtor to pay rent due to the decree-holder fog the period between the institution of the suit and the date of the sale.