BARODA CHARAN DHAR Vs. ERSHAD KHAN

JUDGEMENT

(1.) This is an appeal from a decision of the learned Officiating Subordinate Judge of Chittagong dated the 3rd January 1914, affirming the decision of the Munsif of Fatikcheri. The suit was brought for rent. The question in debate in the present appeal is whether the plaintiff is entitled to rent as a patnidar. The patni was mortgaged to the plaintiff by one who, in the course of these proceedings, has been called K, Subsequent to this mortgage the zemindar obtained a decree for rent against K. under the Bengal Tenancy-Act. In the sale that followed, the patni was purchased by the defendant No. 25 in the present suit, who is the son of K,, on the 12th November 1904. Defendant No. 25 took no steps for annulling the mortgage under the provisions of the Bengal Tenancy Act. Subsequently, a suit was brought by the plaintiff on his mortgage to which suit both K. and the present defendant No. 25 were parties. A decree was passed in that suit, the property was sold in execution and purchased by the plaintiff himself on the 7th June 1906. The judgment in the mortgage suit as well as the decree both have been read to us. The only defend-ant who appeared in the suit brought by the plaintiff on his mortgage was a mortgagee whose mortgage was subsequent to the mortgage of the plaintiff and the suit was decreed as against the defendants. There is no doubt about that from the terms of the judgment. The present defendant No. 25 did not appear at the hearing of that suit, though he was made a party in order to bind any interest that he had. The decree directed the original mortgagor to pay -the money into Court and in default the property was directed to be brought to sale. That decree for sale, in the view of the lower Appellate Court, did not bind the interest of the defendant No. 25. In that view, I am unable to agree. It is quite clear that, in default of the original mortgagor paying the money into Court, the property itself was directed to be sold which would bind the present defendant No. 25 as well as any other defendant to the suit. The plaintiff by his purchase in execution overrode the interest that had been acquired by the defendant No. 25 by his purchase at the sale in execution of the decree for rent. The view taken by the learned Judge of the Court below that the mortgage decree did not bind the defendant No. 25 is, in my opinion, manifestly wrong.

(2.) The next point that has been raised is one under the terms of the Patni Regulation, The plaintiff s purchase was not registered at the landlord s shirista and, therefore, it is said that he has no title to the property. That is unsupported either by the, term* of the Regulation or by any judicial authority. The remedy that is given to the landlord by the terms of the Regulation in the event of the purchaser failing to register and pay the landlord s fee is stated in Section 7 of the Regulation, that is that the landlord; may send an officer of his own to take possession of the property and collect the rent and until the purchaser conforms to the prescribed form, the Regulation constitutes the zemindar a trustee for the purchaser. No steps were taken by the zemindar in the present case in this respect and the plaintiff at the sale in execution of his mortgage-decree bought an interest that is declared by the terms of the Regulation to be transferable. The fact that he was not registered unless and until the zemindar chose to

(3.) Regulation does not, in any way, affect his title. In my opinion, the decisions of both the Courts below are wrong and they ought to be set aside and a judgment entered in favour of the plaintiff for the amount sued for, together with costs both in this Court as well as in the Courts below. The decretal amount will bear interest at the rate of six per cent, per annum from 5th December 1912 until realization. Richardson, J