MAHODEV MAHARAJ Vs. JAGDEV SINGH

JUDGEMENT

(1.) This case was originally heard by my brother Agarwala and myself and we referred it to a Pull Bench by our order, dated 5 May 1938, which runs as follows: This appeal raises a question of considerable, importance about which the decisions of this Court are unfortunately by no means clear. We consider that it is desirable that the appeal should be heard by a larger Bench, and therefore direct that it be laid before the Chief Justice for orders under Rule 2, Ch. 5 of the Rules of the High Court. The question which arises for decision is whether a purchaser (not being a landlord) of a holding in execution of a decree for rent, has a charge for the amount of the decree for rent as against the holder of a mortgage of the part of the holding executed before the purchase, or is entitled to the same rights as the purchaser of a holding in execution of a decree passed on a prior mortgage. The question so formulated arose on the following facts. On 16 September 1929, respondents 5 and 6 executed a mortgage bond in favour of respondents 1 to 4 hypothecating several items of property including khata No. 325 which was part of a holding belonging to them. In 1929, the landlord of the village wherein the holding is situate brought a rent suit and in execution of the decree passed in his favour in that suit the holding was sold and purchased by the appellant on 10 March, 1931. On 5 December 1933, respondents 1 to 4 brought the present suit to enforce their mortgage bond, impleading therein no less than 11 persons including the appellant as defendants.

(2.) The suit was contested only by the appellant who was defendant 11 and by the guardian ad litem of defendant 3, a minor son of one of the executants of the bond. The latter attacked the bond on the ground that it was without consideration and not supported by any legal necessity and the appellant took two additional pleas among others, namely (1) that the incumbrance created by the mortgage had been annulled under Section 167, Ben. Ten. Act, and (2) that the lands purchased by the appellant were not liable to be sold for the payment of the dues under the bond and that at any rate they could be sold only if the dues under the bond were not realized by the sale of the other mortgaged properties. The Munsif who tried the suit passed a mortgage decree against all the defendants including the appellant, holding inter alia that the mortgage bond was genuine and for consideration, that its execution was justified by legal necessity and that the proceeding under Section 167, Ben. Ten. Act was of no avail to the appellant, as he applied under that Section more than a year after having become aware of the plaintiffs mortgage. The appellant then appealed to the District Judge, but as his appeal did not succeed he has preferred this second appeal.

(3.) The main ground which is put forward on behalf of the appellant in this Court is that he being the purchaser of the entire holding of the original mortgagors, has acquired with regard to khata No. 325 a title paramount to that of the plaintiffs and can use it as a shield in that suit. The question, as has been pointed out in the Order of Reference, is of some importance and require careful consideration. Section 65, Ben. Ten. Act, which has been reproduced with a slight variation in the Bihar Tenancy Act of 1935, runs as follows: Where a tenant is a permanent tenure-holder, a raiyat holding at fixed rates or an occupancy raiyat, he shall not be liable to ejectment for arrears of rent, but his tenure or holding shall be liable to sale in execution of a decree for the rent thereof, and the rent shall be a first charge thereon.