GIRISH CHANDRA CHAKRAVERTY Vs. SANANDA PATRA

JUDGEMENT

(1.) This is a plaintiff's second appeal. The appellant had previously obtained a decree for rent of a makadami tenure of which the respondents were the tenants, had put the tenure up to sale, and had purchased it himself. Between the date of the institution of the suit and the date of the sale, certain arrears of rent fell due. The appellant then brought the present suit against his former tenants to realise those arrears.

(2.) Before the trial Court the only defence taken was misjoinder and non-joinder of certain parties. The trial Court dismissed the suit after accepting the contention put forward that the suit was bad on that account. On appeal, the learned District Judge held, and his finding is not challenged, that the suit was not bad either for misjoinder or non-joinder. Nevertheless, he held that the appellant could not sue the former tenants for rent at all for a period prior to the sale in a suit brought after the sale, since the auction purchaser must be deemed to have purchased the property subject to the incumbrance of liability for arrears of rent. For this proposition he relied upon Nripendra Nath Chaterji V/s. Kuldip Misra A.I.E. 1938 Pat. 545.

(3.) For the appellant it is contended that this Pull Bench case turned upon a different point, It contemplated only the case where the arrears of rent due are notified in the sale proclamation as an in-cumbrance and the sale is expressly made subject to that incumbrance, so that the bidders will take that into account when making their offers. This contention is correct. The only point for decision before the Full Bench was whether any distinction was to be made between the case of a stranger auction purchaser and a decree-holder auction purchaser. What was held by the Full Bench was that no distinction could be made. Their Lordships, however, decided nothing regarding a case whether the incumbrance is not notified at the sale, and it is conceded that in the sale proclamation in the present case no incumbrance was notified.