NRIPENDRA NATH CHATTERJEE Vs. KULDIP MISRA

JUDGEMENT

(1.) This case was referred to a Pull Bench as there seemed to be some questions with regard to the decision in Jugal Kishore Narayan Singh V/s. Bhatu Modi A.I.R.1923. Pat. 517 particularly having regard to a decision in the Calcutta High Court on the point at issue.

(2.) The short facts are these. The appellant who was the landlord and a decree- holder obtained a decree for rent and taking out execution got the property sold on 3 August 1934 becoming the purchaser. Between the time of the rent decree and the date which I have just stated other arrears of rent accrued and there can be now no dispute that in the sale arising out of the execution of the rent decree to which I have already referred, the property was put up for sale subject to these arrears of rent, in other words subject to these encumbrances.

(3.) Mr. Mazumdar who argues the case on behalf of the appellant contends that on a proper reading of the sale proclamation this was not the fact. But this being a second appeal and both the Courts below having held that it was so sold it is impossible to accept the contention of Mr. Mazumdar in this regard. We can take it therefore that the property was sold subject to these encumbrances and the real point at issue is whether Mr. Mazumdar's client, being the decree-holder and a purchaser, is in a different position from a third party purchaser. It is conceded, indeed it has been decided in a number of cases, that a third party purchaser would be liable to pay off the encumbrance which was notified in the proclamation : in other words liable for the payment of rent. The argument on behalf of the appellant is that the decree-holder is in a different position.