INDRA NARAYAN GHOSE Vs. TARINI PROSAD GUIN

JUDGEMENT

(1.) This is an appeal by the defendants Nos. 1 and 2 against a decision of the District Judge of Murshidabad reversing a decision of the Munsif of Kandi. The suit out of which the appeal arises was brought by the plaintiff to recover possession of certain property on declaration of his title thereto. The plaintiff's title was based on a purchase at a rent sale on the 21 May 1918. The defence of the defendants was that they had purchased the property on the 17th September 1913 in execution of a mortgage-decree in respect of which they were decree- holders and they alleged that as their mortgage had not been annulled under Section 167 of the Bengal Tenancy Act, the plaintiff could not recover his possession of the premises. The first Court dismissed the prayer for khas possession but declared that the plaintiff was entitled to get rent from the defendants in respect of the property. The second Court decreed the plaintiff's claim for kites possession holding that there was no encumbrance on the property.

(2.) Now it is urged before us that under the circumstances the mortgage is an encumbrance on the property and that consequently the decree of the lower Appellate Court giving khas possession is incorrect; and reliance is placed by the appellants on the decision in the case of Sukhi V/s. Ghulam Safdar Khan 65 Ind. Cas. 151 : 43 A. 469 : (1921) M.W.N. 445 : 14 L.W. 162 : 26 C.W.N. 279 : 42 M.L.J. 15 : 30 M.L.T. 175 : 24 Bom. L.R. 590 : (1922) A.I.R. (P.C.) 11 : 48 I.A. 465 (P.C.) and on a decision of this Court in the case of Sital Chandra Majhi v. Parbati Charan Chakrabarti 69 Ind. Cas. 841 : 35 C.L.J. 1 : (1922) A.I.R. (C.)32. The respondent, on the other hand, relied on the decision in the case of Bhawani Kumar v. Mathura Prasad Singh 16 Ind. Cas. 210 : 40 C. 89 : 16 C.W.N. 985 : 23 M.L.J. 311 : 12 M.L.T. 352 : (1912) M.W.N. 244 : 14 Bom. L.R. 1046 : 16 C.L.J. 606 : 39 I.A. 228 (P.C.) (a decision of the Judicial Committee) and also on a decision of this Court in the case of Sabjan Mandal v. Haripada Saha 66 Ind. Cas. 103 : 25 C.W.N. 424. The appellants distinguished the case in Bhawani Kumar V/s. Mathura Prasad Singh 16 Ind. Cas. 210 : 40 C. 89 : 16 C.W.N. 985 : 23 M.L.J. 311 : 12 M.L.T. 352 : (1912) M.W.N. 244 : 14 Bom. L.R. 1046 : 16 C.L.J. 606 : 39 I.A. 228(P.C.) on the ground that that was decided whilst the provisions of Section 89 of the Transfer of Property Act were still in force. The concluding words of that section are that upon the happening of the events therein set out the defendants right to redeem and the security shall both be extinguished and the appellants say that by reason of the repeal of that section and the omission of the concluding words of Section 89 in the provisions of Order XXXIV, Rule 5 of the C.P.C. which had re-placed Section 89 of the Transfer of Property Act, the decision in Bhawani Kumar V/s. Mathura Prasad Singh 16 Ind. Cas. 210 : 40 C. 89 : 16 C.W.N. 985 : 23 M.L.J. 311 : 12 M.L.T. 352 : (1912) M.W.N. 244 : 14 Bom. L.R. 1046 : 16 C.L.J. 606 : 39 I.A. 228 (P.C.) cannot be relied on. It is necessary, therefore, to examine these cases in order to see if the contention of the appellants is correct. In Bhawani Kumar V/s. Mathura Parsad Singh 16 Ind. Cas. 210 : 40 C. 89 : 16 C.W.N. 985 : 23 M.L.J. 311 : 12 M.L.T. 352 : (1912) M.W.N. 244 : 14 Bom. L.R. 1046 : 16 C.L.J. 606 : 39 I.A. 228 (P.C.), the mortgagee had obtained a decree on a mortgage-bond on the 31 May 1899, which decree was made absolute on the 19 December 1899. The decree was executed by the mortgagee on the 19 March 1900 and he himself purchased the property, the sale having been confirmed on the 23 April 1900. Meantime on the 29 March 1910, there was default in payment of Government revenue and on the 6 of June 1910, the whole share was sold and purchased in the name of the second defendant in the suit by the third defendant. A sale certificate was obtained on the 3 July 1901 and possession was delivered on the 5 July 1901. The Judicial Committee in that case held that the sale in execution of the mortgage-decree took effect from the actual date of the sale and not from its confirmation and that the mortgagee who had purchased on the 19 March 1900 became by virtue of his purchase the proprietor of the estate sold and not merely a purchaser of such right, title and interest in it as a purchaser might have had and their Lordships, therefore, decided that at the time of the revenue sale there was no encumbrance on the property because by virtue of the purchase by the mortgagee at the sale in execution of the mortgage-decree the mortgagee became the owner of the property and his mortgage was merged in his higher right as a purchaser. That decision was based on the general law and not on any special provisions occurring either in the Transfer of Property Act or in any other Act. As I have already stated that case was followed by this Court in Sabjan Mandal V/s. Haripada Saha 66 Ind. Cas. 103 : 25 C.W.N. 424. Mr. Justice Chatterjee in delivering the judgment of the Court refers to this case in Bhawani Kumar V/s. Mathura Prasad Singh 16 Ind. Cas. 210 : 40 C. 89 : 16 C.W.N. 985 : 23 M.L.J. 311 : 12 M.L.T. 352 : (1912) M.W.N. 244 : 14 Bom. L.R. 1046 : 16 C.L.J. 606 : 39 I.A. 228 (P. C) and says that by virtue of the purchase the mortgagee became the owner of the property and could not maintain as against himself or as against third parties not connected with the mortgage transactions, the position that his mortgage still remained an encumbrance thereon. The law that was applied in that case was the law as laid down in Order XXXIV, r.5 of the C.P.C. which, as I have already stated, does not contain the words that appear at the end of Section 89, of the Transfer of Property Act. Now the case in Sukhi V/s. Ghulam. Safdar Khan 65 Ind. Cas. 151 : 43 A. 469 : (1921) M.W.N. 445 : 14 L.W. 162 : 26 C.W.N. 279 : 42 M.L.J. 15 : 30 M.L.T. 175 : 24 Bom. L.R. 590 : (1922) A.I.R. (P.C.) 11 : 48 I.A. 465 (P.C.) was a case between mortgagees. There the puisne encumbrancer had not been made a party to the mortgage suit and he accordingly claimed to redeem the property having regard to his rights as a puisne encumbrancer and it was decided in that case that having regard to the fact that the words which appear at the end of Section 89 are not contained in Order XXXIV, Rule 5, it was open to the prior mortgagee to set up as against the puisne encumbrancer his mortgage despite the fact of his purchase in execution of the mortgage-decree. Mr. Justice Mukerjee in the case reported as Sital Chandra Majhi V/s. Parbati Charan Chakrabarti 69 Ind. Cas. 841 : 35 C.L.J. 1 : (1922) A.I.R. (C.)32 refers to this decision and states that the conclusion at which he had arrived to which I shall refer presently did not militate against the decision in Bhawani Kumar V/s. Mathura Prasad Singh 16 Ind. Cas. 210 : 40 C. 89 : 16 C.W.N. 985 : 23 M.L.J. 311 : 12 M.L.T. 352 : (1912) M.W.N. 244 : 14 Bom. L.R. 1046 : 16 C.L.J. 606 : 39 I.A. 228 (P.C.) which was applied in the case reported as Sabjan Mandal V/s. Haripada Saha 66 Ind. Cas. 103 : 25 C.W.N. 424. We do not think, therefore, that it can be suggested that he thinks that those two cases are no longer the law having regard to the change which had occurred by reason of the concluding words of Section 89 of the Transfer of Property Act not having been imported into the provisions of Order XXXIV, Rule 5. The point which arose for decision in the case before Mr. Justice Mukerjee was whether the purchase by a landlord at a rent sale does or does not ipso facto cancel the mortgage on the property. In that case the purchase by the landlord at a rent sale was prior to the decree obtained by the mortgage, and Mr. Justice Mukerjee there decides that the mere fact that the landlord had purchased in execution of a rent-decree while the mortgage was still subsisting could not be held by itself to annul the encumbrance. It will be notified that in that case at the time the landlord purchased the mortgage was a mortgage merely and that there had been no decree in respect thereof. Consequently in that case, when the landlord purchased, the mortgage was a subsisting encumbrance and if the landlord desired to annul it, he could only do so by proper proceedings under Section 167 of the Bengal Tenancy Act. It is true that Mr. Justice Mukerjee does refer to the change in law by reason of the omission of the concluding words of Section 89 from the provisions of Order XXXIV, Rule 5. But as I have already stated he expressly says that the decision in Bhawani Kumar v. Mathura Prasad Singh 16 Ind. Cas. 210 : 40 C. 89 : 16 C.W.N. 985 : 23 M.L.J. 311 : 12 M.L.T. 352 : (1912) M.W.N. 244 : 14 Bom. L.R. 1046 : 16 C.L.J. 606 : 39 I.A. 228 (P.C.) still stands and he does not dissent from Mr. Justice Chatterjee's judgment in Sabjan Mandal V/s. Haripada Saha 66 Ind. Cas. 103 : 25 C.W.N. 424 and he decided the case on the facts that had happened in the particular case that was before him. Now there is no doubt that the point is not ah easy one for it may well be said, as has been urged before us, that if the mortgage even after the purchase by the mortgagee in execution of a mortgage-decree, can be set up as a shield as has been decided in Sukhi V/s. Ghulam Safdar Khan 65 Ind. Cas. 151 : 43 A. 469 : (1921) M.W.N. 445 : 14 L.W. 162 : 26 C.W.N. 279 : 42 M.L.J. 15 : 30 M.L.T. 175 : 24 Bom. L.R. 590 : (1922) A.I.R. (P.C.) 11 : 48 I.A. 465 (P.C.) it is equally open to the mortgagee to set it up as a defence against, the landlord who has purchased at a sale in execution of a rent decree and we think that there is good deal to be said for this point of view. But nevertheless I think, that the decision in Sukhi v.Ghulam Safdar Khan 65 Ind. Cas. 151 : 43 A. 469 : (1921) M.W.N. 445 : 14 L.W. 162 : 26 C.W.N. 279 : 42 M.L.J. 15 : 30 M.L.T. 175 : 24 Bom. L.R. 590 : (1922) A.I.R. (P.C.) 11 : 48 I.A. 465 (P.C.) must not be taken as conflicting in any way with the decision in Bhawani Kumar V/s. Mathura Prasad Singh 16 Ind. Cas. 210 : 40 C. 89 : 16 C.W.N. 985 : 23 M.L.J. 311 : 12 M.L.T. 352 : (1912) M.W.N. 244 : 14 Bom. L.R. 1046 : 16 C.L.J. 606 : 39 I.A. 228 (P.C.) which was decided on general principles but merely as laying down that as between mortgagees it is open to the prior mortgagee even after he has purchased the property in execution of his mortgage-decree to set up his mortgage as a shield against any claim by a puisne encumbrancer whose rights have not been affected by reason of his not being included as a party in the mortgage suit and, therefore, thinking that the decision in Bhawani Kumar V/s. Mathura Prasad Singh 16 Ind. Cas. 210 : 40 C. 89 : 16 C.W.N. 985 : 23 M.L.J. 311 : 12 M.L.T. 352 : (1912) M.W.N. 244 : 14 Bom. L.R. 1046 : 16 C.L.J. 606 : 39 I.A. 228 (P.C.) has been unaffect ed by the decision in Sukhi v. Ghulam Safdar Khan 65 Ind. Cas. 151 : 43 A. 469 : (1921) M.W.N. 445 : 14 L.W. 162 : 26 C.W.N. 279 : 42 M.L.J. 15 : 30 M.L.T. 175 : 24 Bom. L.R. 590 : (1922) A.I.R. (P.C.) 11 : 48 I.A. 465 (P.C.), we think that the decision of the lower Appellate Court was right and this appeal must fail.

(3.) The appeal is, accordingly, dismissed and with costs. Cuming, J.