BHUPENDRA NATH CHATTERJI Vs. UPENDRA NATH CANGOPADHYA

JUDGEMENT

(1.) This appeal, which has been preferred by a purchaser at a sale in execution of a decree for arrears of rent, is directed against an order of the Subordinate Judge of Jessore setting aside the sale. The sale which has been reversed took place on the 20 February 190G. On the 13 November following the present respondent made an application to set aside the sale on the ground of fraud and irregularity. The title which was set up by him was based on a purchase at a sale in execution of a mortgage decree on the 19 November 1903. The Court of first instance found that the property was not transferable and, there fore, the applicant had no locus standi under Secs.244 and 311 Civil Procedure Code. Upon appeal the learned Subordinate Judge has held that as rent was received from the respondent by the landlord on the 24 June 1906 he has been recognised as a tenant and is consequently entitled to maintain this application. On the merits, the Subordinate Judge has found that the sale is vitiated by fraud and has consequently reversed it.

(2.) The auction purchaser has now appealed to this Court. On his behalf it has been contended, first, that the applicant has no locus standi because his purchase at the mortgage sale took place on the 19 November 1903, that is, long before the rent suit was instituted, and that consequently he is not a representative of the judgment-debtor and is not entitled to make an application under Section 244 Civil Procedure Code; and secondly, that in no event is the applicant entitled to apply under Secs.244 and 311 Civil Procedure Code until he establishes that the property in question was transferable and he had acquired a valid interest in it by his purchase on the 19 November 1903.

(3.) So far as the first contention is concerned we are of opinion that it cannot be sustained in view of the decisions in Azgar Ali V/s. Asaboddin Kazi 9 C.W.N. 134 and Srimati Nissa Bill v. Radha Kishore Manikya 11 C.W.N. 312. These cases lay down that when the landlord of an occupancy holding obtains a decree against the registered tenant, an unregistered transferee of the tenant into whose hands the holding has passed in whole or in part, is bound by the decree and is, therefore, a representative of the judgment-debtor within the meaning of Section 244 of the Code. If, therefore, it is established that the property in question was transferable and that the petitioner acquired a valid interest therein by his purchase, he is on the authority of these decisions a representative of the judgment-debtor and is entitled to maintain the application under Secs.244 and 311 Civil Procedure Code, The first contention advanced on behalf of the appellant must, therefore, be overruled.