KALI PROSANNA RAY Vs. PREM CHAND MAHAPATRA

JUDGEMENT

(1.) This appeal is by the plaintiff and it arises out of a suit for enforcing two mortgage-deeds with reference to the property in question. The deeds were executed by the defendants Nos. 1 and 2 in favour of the plaintiff. Defendants Nos. 3 to 6 were made parties on the allegation that they were not interested in the equity of redemption by reason of their subsequent purchase of the mortgaged properties. Defendant No. 4 really contests the suit. His contention is that he was an auction-purchaser of the property in schedule "Go," in execution of a certificate issued for recovery of rent under the provisions of the Bengal Tenancy Act and having purchased the property with the right to annul all incumbrances, he served a notice under Section 167 of the Bengal Tenancy Act and thereby the mortgage on the property purchased by him had been annulled. The Munsif passed a decree in favour of the plaintiff against all the defendants including the property purchased by defendant No, 4. The defendant No. 4 only appealed against that decree and on his appeal the learned District Judge has held that the mortgage on the property purchased by defendant No. 4 has been annulled by proper service of notice under Section 167 of the Bengal Tenancy Act. The contention on behalf of the appellant is the same which was urged before the learned Judge. It is that the sale was not in accordance with the provisions of the Bengal Tenancy Act, as the procedure laid down in Section 163, Sub-section 2, Clause (a) was not followed. It is also urged that the attachment of the property and the sale proclamation not having been issued at the same time, it must be held that the sale was not conducted under the Bengal Tenancy Act but it was a sale held under the C. P. C. and, therefore, the auction-purchaser is not entitled to the benefit of the provisions of Section 167 of the Bengal Tenancy Act. The learned Judge did not accept the contention on behalf of the plaintiff and following the case of Mahabir Prasad V/s. Baiju Lal 39 Ind. Cas. 230 : 2 P. L. J. 176 : 1 P.L.W. 351 : (1917) Pat. 143. decreed the appeal of the defendant No. 4. It is for us to consider whether that view should be accepted.

(2.) The contention on behalf of the appellant is that all the proceedings laid down in the Act should be strictly followed in order to apply the provisions about annulment of an incumbrance by an auction-purchaser. It has been found that the certificate was a proper certificate for recovery of rent.

(3.) The question is whether the error of using a form which is not usual in proceedings under Section 163 of the Bengal Tenancy Act makes it a sale different from a sale under the Bengal Tenancy Act. The argument based on the use of a particular form of sale proclamation cannot be accepted. As was observed in the case of Akhoy Kumar Soor V/s. Bejoy Chand Mohatap 29 C. 813., where also, by carelessness or oversight a wrong form was used for the proclamation of sale, in order to find what rights the auction-purchaser obtained under the sale, the true meaning of the decree under which the sale took place as well as the proceedings leading up to the sale should be looked into. There is no question that the sale in this case was for arrears of rent and the property in arrear was sold. We have to see if there is any thing which deprives the auction-purchaser of the rights of a purchaser in execution of a rent decree.