ANNADA PROSAD CHATTERJI Vs. PHANINDRA BHUSAN GHATAK

JUDGEMENT

(1.) THIS is an appeal by the plaintiff in a suit for possession on declaration of title, and is directed against the decision of our learned brother R.C. Mitter, J., affirming that by the Subordinate Judge, Bankura. The plaintiff prayed relief in the suit instituted by him on the basis of rent sale at which he was the purchaser of the property in litigation, on 22nd November 1923. The defendants who resisted the claim of the plaintiff in the suit, were the mortgagee purchasers at a sale in execution of their mortgage decree; the purchase of the defendants was on 20 May 1924. The case of the defendants was that the plaintiffs not having annulled the mortgage were not entitled to get possession as prayed by them in the suit without redeeming the mortgage. The learned Subordinate Judge in the Court of appeal below gave effect to the defence of the defendants, and the decree passed by him directed payment of the decretal amount of the defendants mortgage, before he could get Khan possession of the lands in suit. The decree so passed by the lower appellate Court was affirmed by Mitter, J., in Second Appeal. In the case before us, the defendants were mortgagees at the date of the rent sale at which the plaintiff was the purchaser; the rent sale was prior in point of time and the defendants purchased the property within a year of the rent sale in execution of their mortgage decree. The right of the defendants under the mortgage was not annulled.

(2.) ON the facts of the case, about which there is no dispute, the legal position would be the one indicated by our learned brother Mitter, J., in his judgment, that the sale under, the mortgage would not for all purposes extinguish the mortgage; the purchaser at the mortgage sale could fall back on the mortgage, and use it as a shield against the purchaser at a rent sale. This is in consonance with tha principle underlying the decision of the Judicial Committee in Sukhi V/s. Golam Safdar 1922 P C 11, and is in accordance with the decision of this Court in Sital Chandra Majhi V/s. Parbati Charan 1922 Cal 32, in which it was held, in line with the decision in previous cases, that the mortgagee purchasing property in execution of a decree obtained by him in the suit instituted in the mortgage in which the purchaser at a rent sale was not made a party, does not lose his right to be redeemed by the purchaser at rent sale; and the relative rights of the purchaser at the rent sale and the mortgagee should be determined with reference to this position at the time of the sale. As indicated above, we are in entire agreement with the decision of our learned brother Mitter, J., and this appeal must accordingly be dismissed. The appeal is dismissed with costs.