AMBIKA CHARAN ROY BARMAN Vs. HAR KISHORE CHAKRAVARTI

JUDGEMENT

(1.) This is an appeal from a decree of the Subordinate Judge of Tipperah, dated the 28th August 1924, which affirmed a decree of the Munsif of Nabinagore, dated the 3 July 1923.

(2.) The suit to which this second appeal relates was brought by the plaintiff for recovery of Rs. 361-8-0 due on the mortgage bond which was executed by Kshiroda Sundari Devi (who is now represented by defendants 1 and 2) en the 21 Aghrayan 1316 B.S. Defendants 3 to 5 were made parties to the suit as subsequent purchasers of the equity of redemption in execution of a decree for money; defendants 6 and 7 were impleaded as they were purchasers of the taluk in question at a sale at the instance of the landlord in execution of a decree for rent; plaintiff asked for the usual mortgage decree for sale and made an alternative prayer that in the event of the sale in favour of defendants 6 and 7 being held to be a sale in execution of a rent decree he may be allowed to get the decretal amount from the surplus sale-proceeds; several defences were taken by defendants 6 and 7 of which it is only necessary to mention two. The first plea is that as defendants 6 and 7 are purchasers of the taluk in a rent sale free from all incumbrances plaintiffs can get their claim satisfied out of their susplus sale-proceeds. The second plea is that it is not open to the plaintiff to raise the contention that the decree in execution of which the taluk in question was sold is not a rent decree. The Court of first instance held that the decree was not a rent-decree and that the plaintiff was not estopped from showing that the decree was not a rent-decree. The Munsif accordingly passed a preliminary mortgage decree for sale of the mortgaged property on contest against defendants 3 to 7 and ex parte against defendants and 2. An appeal was carried to the Subordinate Judge by defendants 6 and 7 and the decision of the Munsif was affirmed. A second appeal has been preferred to this Court by defendants 6 and 7 and it has been contended before us (i) that the Subordinate Judge has erred in holding that the decree was not a rent decree and (ii) that the lower appellate Court has committed an error of law in coming to the conclusion that plaintiff is not estopped from showing that the decree was a rent decree and that the sale was not a rent sale.

(3.) In order to examine the soundness or otherwise of the two contentions raised by the learned vakil for the appellants it is necessary to state the following facts which have been found in this case. The Maharaja of Tipperah is the proprietor of an estate under which there is a taluk known as taluk Indra Narain Bhattacharjee. In this taluk the plaintiff Kshiroda Sundari the predecessor-in-interest of defendants 1 and 2 and the Maharaja himself are co-sharers. Kshiroda Sundari died leaving behind her a son. Haribole Chakravarti and two daughters Labanya and Mono Mohini; the Maharaja brought a rent suit for the entire rent against Haribole and the plaintiff but did not make Kshiroda Sundari's daughter Mono Mohini a party to the rent suit; the Maharaja obtained a decree for the entire rent leas his 8 annas share which was payable to himself and proceeded to execute the decree as a decree for rent under Chap. 14, Bengal Tenancy Act; during the execution proceedings Haribole died and his father defendant 1 was substituted in his place as his heir and legal representative and execution proceeded against the plaintiff and defendant 1 and the entire tenure including the Maharaja's share in it which carried a rental of Rs. 15 was sold and was purchased by defendants 6 and 7, now appellants, with power to annul all incumbrances. The purchasers, i.e., defendants 6 and 7 served notice under Section 167, Bengal Tenancy Act, on the plaintiff for annulling the incumbrances. In these proceedings the plaintiff who was one of the judgment-debtors did not object to the execution proceedings on the ground that the procedure under Chap. 14, Bengal Tenancy Act, could not be availed of by the Maharaja as the decree was not a rent-decree and the property was accordingly sold free from incumbrances.