BIBHUTI BHUSAN MOZUMDAR Vs. MAJIBAR RAHAMAN

JUDGEMENT

(1.) This is an appeal against an order made by Ameer Ali, J., in a mortgage suit. The preliminary decree in the suit was made on 7 May 1930, and the Registrar reported that Rs. 5,110 odd was due to the plaintiff. In the final decree, made on 14 December 1931, it was ordered inter alia that the premises be sold; and in pursuance of these two decrees, the property was sold on 3 February 1933, and purchased by one Haji Abdur Rahim for Rs. 6,450, The sale was subsequently confirmed, and after payment of the commission of the Registrar and the Accountant-General, there is now lying in Court standing to the credit of the suit a sum of Rs. 6,151 odd. The plaintiff's dues amount now to Rs. 6, 530 odd, and apart from his costs, which have not yet been taxed, the money in Court will not be sufficient to meet his claim, and he has given up his costs up to the preliminary decree. That being the position, the plaintiff asked for payment to him out of the sum lying in Court.

(2.) The purchaser, in answer to his petition, urged that there was a sum of Rs. 1,749 odd owing to the corporation of Calcutta for consolidated rates, that this sum ought to be paid out of the sum lying in Court, and the balance only be paid to the plaintiff. His contention was, that under the conditions of sale it was provided that the purchaser should not be liable to pay the outgoings previous to the date of payment of the purchase money, and that the rents and outgoings should be apportioned where necessary. This condition is usual, and is included in the form of conditions of sale in Appendix J., Form No. 1 of the Rules and Orders of the High Court on the Original Side.

(3.) It is not disputed that consolidated rates, and other similar Municipal rates, are included in such a term as "outgoings" when used with reference to premises such as these. But it is provided by Section 205, Calcutta Municipal Act 1923, that the consolidated rates shall, subject to certain conditions, be a first charge upon the premises, and it is contended by the plaintiff that the expression "outgoings" cannot be held to cover such a charge.