MIDNAPORE ZAMINDARY CO LTD Vs. HARIPADA ROY

JUDGEMENT

(1.) The plaintiff instituted the suit for the recovery of arrears of rent of a permanent tenure for the period 1338 Falgoon to 1339 Magh. It appears that the plaintiff had previously obtained a decree for the rents of another tenure and in execution of that decree he auction- purchased the tenure in suit on 25 January 1933. The present suit has been brought against the same judgment-debtor in respect of a period anterior to the auction-purchase. The suit is contested by defendant 6 and his defence is that the sale of 25 January 1933 was in effect a money sale, that the landlord auction-purchased only the right, title, and interest of the judgment-debtor and that the latter is no longer liable for the rent of the anterior period. This defence has been accepted by both the Courts below. Hence this second appeal by the plaintiff. The learned advocate for the plaintiff-appellant does not dispute that his client purchased the tenure at a money sale, but he contends that he is entitled to a money decree against the judgment-debtor tenant for the arrears of the anterior period. The Courts below have taken the view that this liability for the arrears passed with the sale and attached to the landlord purchaser. The question is whether this view is correct. It is important to remember that Section 65, Ben. Ten. Act, gives to the landlord a special remedy by putting him in the position of a first mortgagee so to speak; but his other remedy against the tenant personally for the debt due to him remains, and he has the right to avail himself of either of these remedies: Trinprosad Roy V/s. Narayan Kumari Debi (1890) 17 Cal 301. That however was not the case of a landlord auction purchaser at a money sale. The right given by 8. 65 is dependent on the existence of the relationship of landlord and tenant at the time when the remedy provided by law is sought to be enforced: A.H. Forbes V/s. Maharaj Bahadur Singh (1914) 1 AIR PC 111. Similarly a decree obtained by a landlord against the tenants who had ceased to be tenants cannot be called a decree for rent: Dwarkanath Chakravarti V/s. Atul Chandra (1919) 6 AIR Cal 381. This point indeed presents no difficulty in the present case. The question is not what would happen at the execution stage but whether by operation of law the right of the landlord auction purchaser to the arrears of rent for the anterior period has been extinguished. The tenant was liable for those arrears. The landlord has now placed himself in the position of that tenant by purchasing his right, title, and interest. Then can the landlord still say that he can claim those arrears from the person whose right, title, and interest he has purchased? In Sailoja Prosad V/s. Gyani Das (1913) 18 CLJ 29 the land-lord had obtained against the tenant a rent decree in 1904 and a money decree in 1906. In execution of the later decree he attached the tenure and proclaimed at the time of sale that the tenure was subject to the judgment debt under the decree of 1904. The decree- holder having purchased at this sale, it was held that the judgment debt under the rent decree was extinguished.

(2.) In the present suit under appeal the question has not arisen at an execution stage and there is not yet a decree, but there is a liability which is sought to be made into a decree. So the same principle appears to be applicable. For the appellant stress is laid on the fact that, unlike as in the reported case, the proclamation of sale which resulted in the plaintiff's auction-purchase did not contain any notice that there were rents in arrears for the anterior period. That case is referred to and explained in a judgment of the Patna High Court in Kesho Prosad V/s. Mt. Paranjota Koer (1921) 8 AIR Pat 184 wherein the importance of the notice in the sale proclamation is stressed. But does the absence of notice always mean that the sale is not subject to the charge? I do not think so. Rent is by operation of law the first charge on a tenure and ordinarily the purchaser would take the tenure subject to that charge: Maharanee V/s. Harendra (1897) 1 CWN 458. This was also held in the case of a private purchase, Amiya Pal V/s. Sharba Mangalal (1926) 13 AIR Cal 737, though the charge does not attach until the execution stage is reached: Official Trustee of Bengal V/s. Purna Chandra Roy . Moreover so far as the landlord auction-purchaser is concerned, he does not require any notice that arrears of rent are due. The matter is within his special knowledge and so it has been held that his omission to notify the arrears has the effect of destroying his lien on the property: Giribala Debia V/s. Mina Kumari (1904) 5 CWN 497. It has also been pointed out that although Section 65 has been enacted for the benefit of the landlord, he may lose the benefit by his own conduct as in Ram Saran V/s. Mahomed Latif (1893) 3 CWN 62. There the landlord in execution of a money decree purchased an occupancy holding and after settling it with other persons brought it to sale in execution of a decree for past arrears against the original tenant. It was held that the purchaser did not acquire any title because the landlord by his own conduct had brought the rayati right of the tenant to a termination. Further authority is furnished by that class of cases, including cases of patni sale in which it has been held that the auction purchaser who has paid the back rents has no right of contribution as against the previous tenant : Maharanee V/s. Harendra (1897) 1 CWN 458, Peary Mohan V/s. Sriram Chandra (1902) 6 CWN 794, Manindra Chandra V/s. Jamahir Kumari (1905) 9 CWN 670, Ranglal Sahu V/s. Kali Shankar (1924) 11 AIR Pat 235 and Dost Mahomed V/s. Sanjad Ahmed (1884) 6 All 67.

(3.) The ratio decidendi of these decisions seems to be that ordinarily the purchaser at an execution sale is under a legal liability to pay the rent due upon the property at the time of the sale. From this point of view, if there is a distinction between a rent execution sale and a money execution sale, it is not to the advantage of the purchaser at the latter sale: Mathura Mohan V/s. Nabin Chandra (1917) 4 AIR Cal 286 and Official Trustee of Bengal V/s. Purna Chandra Roy . It has been pointed out that the trend of decisions is to the effect that the purchaser of a tenure at a sale held in execution of a decree, other than a decree for rent, in the absence of anything to denote the contrary must be taken to have purchased it charged with the rent which might be due at the time. But, if the tenure is sold in execution of a decree for its own arrears of rent, it passes to the purchaser freed from all liabilities for its previous arrears. In the present case it seems to me the Courts below have taken the right view and the plaintiff cannot call upon the defendants to pay the arrears of rent for the period in suit. The appeal fails and is dismissed. Patterson, J.