Girish Chandra Chakraverty vs Sananda Patra and Others

Meredith, J.—This is a plaintiff''s second appeal. The appellant had previously obtained a decree for rent of a makadami tenure of which the respondents were the tenants, had put the tenure up to sale, and had purchased it himself. Between the date of the institution of the suit and the date of the sale, certain arrears of rent fell due. The appellant then brought the present suit against his former tenants to realise those arrears.

Before the trial Court the only defence taken was misjoinder and non-joinder of certain parties. The trial Court dismissed the suit after accepting the contention put forward that the suit was bad on that account. On appeal, the learned District Judge held, and his finding is not challenged, that the suit was not bad either for misjoinder or non-joinder. Nevertheless, he held that the appellant could not sue the former tenants for rent at all for a period prior to the sale in a suit brought after the sale, since the auction purchaser must be deemed to have purchased the property subject to the incumbrance of liability for arrears of rent. For this proposition he relied upon Nripendra Nath Chaterji v. Kuldip Misra AIR 1938 Pat. 545.

For the appellant it is contended that this Pull Bench case turned upon a different point, It contemplated only the case where the arrears of rent due are notified in the sale proclamation as an in-cumbrance and the sale is expressly made subject to that incumbrance, so that the bidders will take that into account when making their offers. This contention is correct. The only point for decision before the Full Bench was whether any distinction was to be made between the case of a stranger auction purchaser and a decree-holder auction purchaser. What was held by the Full Bench was that no distinction could be made. Their Lordships, however, decided nothing regarding a case whether the incumbrance is not notified at the sale, and it is conceded that in the sale proclamation in the present case no incumbrance was notified.

The appellant relies upon Maharaja Kesho Prasad Singh v. Musammat Parenjota Koer A.I.R 1921 Pat. 184. That case also, however, is not in point, because it was a case where a decree for rent for the subsequent period had been obtained before the sale upon the first decree. Thus, at the time of the sale the liability for rent had merged in a liability under the decree, a decree which besides being a rent decree was also a personal decree.

Nevertheless, in my opinion, the view urged on behalf of the appellant is the correct view, and that taken by the learned District Judge is wrong. In Haradhan Chhatoraj v. Kartik Chandra Chattopadhya 6 C.W.N. 877 it was held in effect that the auction purchaser would not have been liable for rent due for the period prior to the sale but for the fact that he purchased with notice of the incumbrance.

It is argued that where the auction purchaser is the decree-holder landlord, he must be deemed to have purchased with notice, He must be deemed to have purchased knowing that there were arrears of rent, that is true, but that is not to say that he must be deemed to have had notice that the property was sold subject to that incumbrance. To my mind, the fact that the incumbrance was not notified in the sale proclamation makes all the difference, because what is normally contemplated is that in the absence of any notification to the contrary the property will be sold free from incumbrances, A case which is material is Faez Rahaman v. Ramsukh Bajpai (''94) 21 Cal. 169. In this it was held that the auction purchaser was not liable for arrears of rent which had become due prior to the purchase. This ruling turned upon the provisions of Section 169(c), Ben. Ten. Act, which enact that if any surplus remains of the proceeds realised by the sale of a tenure in execution of a decree for arrears of rent, after satisfying that decree, any rent falling due between the date of the suit in which the decree was passed, and the date of sale, shall be paid there from to the decree-holder, "This provision of the law," their Lordships say, "evidently shows that the Legislature intended that the charge in respect of any rent falling due between the date of suit and the date of sale in satisfaction of the decree passed therein, shall be transferred from the tenure to its sale proceeds, and that the tenure shall pass to the purchaser at a sale for arrears of rent, free of all liability created upon it by the default of the previous holder."

These observations apply with equal foroe to a case under the Orissa Tenancy Act, because Section 223, Orissa Tenancy Act, contains a precisely similar provision, Section 223(c) runs as follows: "If there remain a balance after these sums have been paid, there shall be paid to the decree-holder therefrom any rent which may have fallen due to him in respect of the tenure or holding between the institution of the suit and the date of the sale." Then comes Section 223(d) which says: "The balance (if any) remaining after the payment of the rent mentioned in Clause (c) shall, upon the expiration of two months from the confirmation of the sale be paid to the judgment-debtor upon his application."

These provisions surely show that the Legislature contemplated that the liability for rent for the period between the suit and the sale should become a charge upon the surplus sale proceeds surplus sale proceeds which apart from that liability shall go to the judgment-debtor. That is to say, the judgment-debtor takes the surplus sale proceeds less any sum due for rent for the period in question. That is to say the rent for this period is regarded as a liability of the judgment-debtors, and consequently it must have been contemplated that the sale should pass the property free from any such liability.

The respondents rely upon a Calcutta case, Midnapore Zamindary Co. Ltd. Vs. Haripada Roy and Others, , but that case does not help them; rather the contrary. It was a case of quite a different nature, where the prior decree was not a rent decree at all, but a money decree. Being a money decree what passed to the auction purchaser was not the holding, but the right, title and interest of the judgment-debtor. As the judgment-debtor had held the holding subject to its liability for rent on transfer of his interest to the auction purchaser that, liability must pass to the auction purchaser. That was the principle upon which that case turned, and it is obviously inapplicable to a case like that with which we are dealing at present. In such a case only, their Lordships held, the absence of any notification of the incumbrance in the sale proclamation could make no difference. Of course, it could make no difference, because in that case the auction purchaser simply stepped into the shoes of the original judgment-debtor, and placed himself in the same position. This case, on the contrary, contains an observation, which strongly supports the opposite view. Ghose, J. in his judgment observes: "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 (this is the significant passage) if the tenure is sold in execution of a decree for its own arrears of rent, it passes to the purchaser freed torn all liabilities for its previous arrears."

If that is the normal position, and I have tried to show that it is what the law contemplates, then the fact that the landlord must know that arrears are due can make no difference, because he also knows that he is making the purchase as auction purchaser not subject to those arrears, but free from them in the absence of a notification to the contrary.

In my view, the landlord in the present case was entitled to sue his former tenants, after the sale for arrears accrued due prior to the sale. He cannot, of course, obtain a rent decree, but I see no reason why he should not obtain a money decree. In this view the appeal is allowed with costs, and the suit is decreed with costs throughout.

Leave to appeal under the Letters Patent is prayed for, and is allowed.