KONDAVA NAYAKAR Vs. CHINNA RAMASWAMI NAICKAR

JUDGEMENT

(1.) The plaintiff in this suit although ordered to be served with notice on the former occasion of this petition has not appeared and therefore I have heard an ex party argument. If there was any argument to be advanced on his side, it is his own fault that such an argument has not been presented. It is sufficient for me to say that the contention of the petitioner here seems to me to be quite sound and in the absence of any argument to the contrary I shall uphold that contention.

(2.) Shortly the facts are that the petitioner is defendant 1 and he took a lease of the suit property for five years in 1928 from defendant 2 who was the owner of it. In 1931 the lease was cancelled and id appears that the petitioner then surrendered possession. The plaintiff gob a decree against defendant 2 and in execution of that decree brought six acres of the property to sale. The sale was not confirmed at once because there was an application to set it aside presented by defendant 2 which was dismissed by the first Court and the dismissal of that application was affirmed on appeal on 31 January 1933 and the sale was then confirmed. The suit which is one for arrears of rent was filed on 28 February 1933 immediately after the Appellate Court had confirmed the sale. It seems to be conceded that defendant 1 after the sale to the plaintiff In execution of his decree paid the rent to defendant 2 as formerly but it is quite clear from Ex. 2 which is in answer to a notice sent to him by the plaintiff that defendant 1 was willing in view of the fact that there was a dispute between defendant 2 and the plaintiff as regards the sale of the property to take a receipt from both defendant 2 and the plaintiff or to take their directions with regard to the payment of future rent and that he had deposited a sum of Rs. 250 in the Tinne-velly District Permanent Fund. This I take to be a deposit of the rent pending the claim to it made by the former owner of the property defendant 2 or the plain, tiff being substantiated. At any rate, it is a notice which is of importance because the plaintiff is asked to say to whom the rent is to be paid. It is found as a fact, I think, from the judgment that defendant 1 did pay rent to defendant 2. The suit was filed against both and a decree has one against both although it seems to me that in the plaint relief was only asked for in the alternative if the rent should have been paid to defendant 2 then against defendant 2 only.

(3.) A proper reading of the plaint is I think that should the rent not have been paid over to defendant 2, by defendant 1, then there should be a decree against defendant 1 in respect of that unpaid rent. What seems to have been overlooked in this case is that although by reason of Rule 65, Civil P.C. a property bought in execution of a decree vests in the purchaser from the date of the sale and when the sale has been made absolute the vesting is deemed to be from the date of the sale and not from the data when it became absolute, the sale in this case was not made absolute until after the payment of the rent had been made by defendant 1 to defendant 2 who was, until the sale was confirmed, his landlord. The confirmation of the sale was both after that time and fill time when defendant 1 gave up possession to defendant 2. It appears to me that following the decision of the Privy Council in Baghunandan Prasad Singh v. Commissioner of Income-tax, Bihar and Orissa although it was a decision Under the Income- tax Act and although there is this fiction of relation back of the vesting defendant 1 quite properly paid to defendant 2 this rent and was entitled to do so until the sale had been confirmed. That of course is not to deprive the purchaser of the rent from the date of his purchase when his sale had been confirmed but it seems to me does protect the lessee until such time as the sale is confirmed in regard to any payment he has made to his former lessor. That being so, it seams to me that no decree ought to have been passed against defendant 1 and it should have been passed against defendant 2 alone. For the above reasons, the petition will be allowed with costs of the petitioner here and in the lower Court as against the plaintiff respondent 1 and the decree as against the petitioner set aside.