ASARAM Vs. KANCHEDILAL

JUDGEMENT

(1.) THE first point argued is that the auction purchaser in execution of a rent decree of an absolute occupancy holding get the property free of all in-cumbrances. There is no authority for this view. In the absence of any provision in the C.P. Tenancy Act analogous to that of Section 138 of the Land Revenue Act 1917 I am not prepared to uphold this contention. The auction-purchaser steps into the shoes of the holder of the first charge and has the capacity to redeem qua holder of the equity of redemption. He has the option to fall back on the prior charge or offer to redeem the mortgage in suit.

(2.) THE second point argued is that of the plaintiff's mortgage being voidable, for want of consent. The finding of the lower appellate Court on that point is that the mortgage was consented to by the landlord through one Ramchandra Munim. It is a finding of fact and I cannot interfere with it.

(3.) THE last point is one of limitation. I fail to see how the suit to enforce the mortgage could come within the purview of Article 1 of Schedule 2 of the Tenancy Act of 1920.