Kamaldhari Lal and another vs Tarachand Marwari

James, J.—This is a second appeal from the decision of the District Judge of Bhagalpur dismissing in part the plaintiffs'' suit for arrears of rent. The defendants purchased the holding on 29th October 1930, at a sale in execution of a decree for arrears of rent. The sale proclamation described the holding as sold liable to payment of arrears of rent which had accrued since the date of that suit. The defendants took the plea that they could not be liable for arrears of rent which had accrued before the date of their purchase. On behalf of the landlords the decision in Haradhan Chattoraji v. Kartik Chandra, (1902) 6 CWN 877, was cited wherein it was held that an auction purchaser who had purchased the holding with notice that it was saddled with liability for arrears of rent for a period anterior to date of the sale was liable for the rent of that period. The Munsif remarked that the Judges in that case did not consider whether the notification amounted to an illegality under the Bengal Tenancy Act and he pointed out that in Mohammad Jawad Hussain v. Gopal Narain Singh, 1921 Pat 479 = 80 IC 223, it was held by this Court that such a notification in a sale for arrears of rent amounted to an illegality which would vitiate the sale under O. 21, R. 90. The Munsif accordingly disallowed the landlords'' claim for the period before the date of sale. His decision was confirmed by the District Judge who accepted the view of the effect of the decisions of the Calcutta High Court and of this High Court which had been taken by the Munsif.

Mr. S.N. Bose on behalf of the landlord appellants argues that the correctness of the decision in Haradhan Chattoraji v. Kartik Chandra, (1902) 6 CWN 877 has never been questioned by this Court; and I consider that his argument must prevail. Mr. Janak Kishore on behalf of the respondent suggests that the sale proclamation did not describe the holding as saddled with the liability for arrears of rent, because this liability is entered in the first column of the proclamation, wherein the holding itself is described, and not in the column where the description of in cumbrances is ordinarily found; but effect of the proclamation appears to be clear, that the holding is sold subject to the liability for arrears of rent. The Judges in Mohammad Jawad Hussain v. Gopal Narain Singh, 1921 Pat 479 = 80 IC 223 did not declare that it was illegal to proclaim the holding as sold subject to liability for arrears of rent. They merely declared that it was irregular; and it is to be observed that so far from finding that such a notice in the sale proclamation was an illegality which would vitiate the sale under O. 21, R. 90, the Judges in that case confirmed the sale. In Jogal Kishore Narayan Singh v. Bhatu Modi, 1923 Pat 517 = 80 IC 377 = 2 Pat 720 the late Sir B.K. Mullick remarked:

Now it is settled that after a holding has been once sold in execution of a rent decree and has passed out of the possession of the tenant, it cannot ordinarily be again sold in execution of any other decree for rent due by the same tenant. An exception however has been made in cases where the execution Court, though irregularly, allows the holding to be sold, subject to a liability to satisfy another outstanding decree; in such cases the auction-purchaser is concluded by res judicata and the landlord is competent to proceed in the first instance against the holding and to call upon the auction-purchaser to discharge the liability which he has undertaken. That was the principle of the decision in Haradhan Chattoraji v. Kartik Chandra, (1902) 6 CWN 877.

The learned District Judge has remarked that in the present case at the time of the sale there was no second decree, but only a claim for arrears of rent; but it is clear from the reference to the case of Haradhan Chattoraji v. Kartik Chandra, (1902) 6 CWN 877 that Sir B.K. Mullick meant that the exception had been made where the executing Court allowed the holding to be sold subject to a liability, to satisfy another outstanding claim. There is nothing either in that decision or in the earlier decision of this Court which has been quoted which suggests that the Judges of this Court considered the decision in the case of Haradhan Chattoraji v. Kartik Chandra, (1902) 6 CWN 877 to be wrong. Indeed in each of the two cases the principle of that decision is expressly affirmed.

I consider therefore that this appeal must be allowed, the decrees of the two lower Courts must be set aside and the plaintiffs'' suit must be decreed in full with damages at 12� per cent. The plaintiffs-appellants are entitled to their costs throughout.