Ponnuswami Chettiar vs Ellasari Obul Reddi

Wadsworth, J.—These appeals arise out of proceedings brought for possession of land by a purchaser in a rent sale under the Estates Land

Act from a purchaser in a sale under a mortgage decree. The preliminary decree on the mortgage in favour of the appellant was dated 24th

February, 1927. The revenue sale in favour of the respondent was on 5th September, 1927. The final decree in the mortgage suit was on 3rd

December, 1927. The decree-holder purchaser got possession on 31st March, 1931. Hence the proceedings by the plaintiff to enforce his rights

under the rent sale and to get possession from the mortgagee decree-holder court-auction purchaser who is the appellant, here.

Now the argument for the appellant is that the sale by the Collector for arrears of rent due to the landholder is affected by lis pendensunder

Section 52 of the Transfer of Property Act and that no title can pass to the purchaser in the rent sale which was effected without the consent of the

Court which passed the mortgage decree. This contention overlooks the fact that the sale by the Collector was in fact a sale held to enforce the

paramount right of the landholder to his rent, which u/s 5 of the Estates Land Act is a first charge on the land. It also ignores the fact that by virtue

of Section 125 of the same Act when the land is sold for arrears of rent in respect thereof the purchaser takes free of all encumbrances except

such as have been created with the landholder''s permission or have been created prior to the passing of the Act. It is not suggested that the

mortgages under which the appellant got his decrees fall under either of these two categories. In such circumstances it is difficult to see how a

decree under a mortgage over land which is subject to a prior statutory charge for the rent due to the landholder, can affect a sale at the instance of

the landholder, for the realisation of his dues charged upon the land. No precise case under the Estates Land Act has been cited on this point but

there is ample authority for a similar proposition with regard to sales for arrears of land revenue due to the Crown pending a mortgage suit against

the ryot. It is well established that such a sale for arrears of land revenue is not affected by lis pendens vide Vellappayal Ambalam v. Karuppiah

Pillai I.L.R.(1911) 37 Mad. 49 and the observations in Kadir Mohideen Marakkayar Vs. Muthukrishna Aiyar and Another, . I have no hesitation

in holding that the sale by the Collector for arrears of rent of the land on which those arrears were due to the landholder, is not affected by a

pending suit on a mortgage executed by the ryot who is in default.

The appeals are therefore dismissed with costs. (One set.)