RANI PRABHABATI SAHED (?) Vs. LALJI MAHTO

JUDGEMENT

(1.) This appeal arises out of a suit by the plaintiffs-respondents for a declaration that a decree obtained by the appellants-defendants first party in the suit against defendants second party, for arrears of rent of a tenure, does not affect their interest. The appellants are proprietors of the Banaili Raj whose ancestors granted a permanent tenure to the predecessors of defendants second party in 1878. The kabuliyat, by which the grant of this tenure was evidenced, provided that on the transfer of the tenure the transferee would be liable to pay 15 per cent, on the fixed jama to have his name recorded in the proprietor's serishta, and that, in the case of non-payment of this mutation fee, the grantor would be entitled to realize it in such manner as he thought proper.

(2.) In 1915 the tenure-holders mortgaged the tenure to the plaintiffs, and, in 1929, the latter obtained a preliminary decree on the mortgage which was made absolute in 1930. In execution of this decree the plaintiffs purchased the tenure in 1931. The sale was confirmed on 22 April, 1938, and possession was delivered to the plaintiffs as auction purchasers on 2 November, of that year. On 26 November 1934, the appellants sued defendants second party for rent for the years 1338 to 1341 Fasli, that is to say, for the period from 29 September 1931, to 23 September 1934, and obtained an ex parte decree. When they put this decree in execution, objection was raised by the plaintiffs, but this was overruled. The plaintiffs then made a claim under Order 21, Rule 58, which was dismissed. They then instituted the suit out of which this appeal has arisen.

(3.) The Court below granted the plaintiffs a declaration that the tenure purchased by them in execution of their mortgage decree against the tenure-holders is not liable to be sold in execution of the decree for rent obtained by the appellants against defendants second party. The question of law, on which the parties to this appeal are at issue, arises by reason of the fact that when the sale in execution of the h mortgage decree was made, the provisions of Section 13, Bihar Tenancy Act, were not complied with. Section 11 of that Act declares that permanent tenures are transferable subject to the other provisions of the Act.