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Judgment
Chatterji, J.—The question for determination in this appeal is whether a landlord, who purchases a tenure in execution of a money decree obtained by him in a suit for recovery of arrears of rent of the tenure, takes the tenure subject to the liability for the arrears of rent accruing due between the date of the suit and the date of the sale though such liability may not have been notified in the sale proclamation. The facts'' of this case are these : The appellant who is the landlord of a tenure obtained on 5th August 1933 a money decree in a suit for recovery of arrears of rent of the tenure for the period 1336 to 1339 under the provisions of the Chota Nagpur Tenancy Act. In 1937 the landlord again brought a suit for arrears of rent of the tenure for 1340 to 1343. In this also a money decree was passed on 14 th September 1937, as some of the defendants were not served with summons. During the pendency of this second suit, the landlord took out execution of the money decree dated 5th August 1933 and asked for sale of the tenure. The sale of the tenure was ordered and the sale proclamation was issued while the second suit was still pending. The sale took place on 15th November 1937 when the second suit had already been disposed of. At this sale the landlord became the purchaser of the tenure. In 1940 the landlord took out execution, of the second money decree dated 14th September 1937 and prayed for attachment and sale of some other properties of the judgment-debtors. The judgment-debtors filed objection u/s 47, Civil P. C, contending that the landlord, having purchased the tenure in execution of a money decree, took it subject to the liability for the arrears of rent of the tenure for the period anterior to the sale, and, therefore, the decree under execution was discharged when the purchase was made by him.
The Munsif allowed the judgment-debtors'' objection, and on appeal his decision has been affirmed by the Judicial Commissioner. The decree-holder has, therefore, preferred this appeal. The contention raised by Mr. J. M. Ghosh for the appellant is that though, according to Section 60, Chota Nagpur Tenancy Act, the rent was a first charge on the tenure, the landlord was under no obligation to treat it as a first charge, when suing for arrears, and that the second decree obtained by him being in fact a money decree, he was at liberty to execute this decree by attachment and sale of other properties of the judgment-debtors. In support of this contention reliance has been placed on the following observation of Mookerjee J. in Sailaja Prasad v. Gyani Das (13) 18 C. L. J. 29:
It may be conceded, as was pointed out by this Court in Fotick Chunder Dey v. Foley (88) 15 Cal. 492 and Sourendra Mohan Tagore v. Surnomoyi (99) 26 Cal. 103 that a decree-holder who has obtained a decree for rent is free to proceed against any property of the judgment-debtor; he is under no obligation to proceed in the first instance against the defaulting tenure.
But the real question that arises in the present case is not whether the landlord can execute the second money decree against other properties of the judgment-debtors, but whether the effect of the purchase of the tenure by him in execution of the first money decree. Section 60, Chota Nagpur Tenancy Act runs as follows:
The rent of a tenancy shall be a first charge on the tenancy:
Provided that, if a tenancy is sold in execution of a decree for, arrears of rent, the purchaser shall acquire the tenancy free of all liability for rent for any period prior to the date of the sale, and rent due for any such period shall be a first charge on the sale-proceeds of the tenancy.
The proviso obviously refers to a rent decree. It follows from this section that where a tenure is sold in execution of a money decree, the purchaser who acquires the right, title and interest only of the judgment-debtor takes the tenure subject to the charge for the arrears of rent remaining due at the date of the sale, provided, of course, that the purchaser had notice of the charge. The question of notice of the charge cannot arise where the auction-purchaser is the landlord himself. In the very case relied upon by Mr. J. M. Ghosh, namely, Sailaja Prasad v. Gyani Das (13) 18 C. L. J. 29 it was laid down that where a landlord purchases a tenure in execution of his money decree subject to the liability under a rent decree which was notified in the sale proclamation, the; judgment-debt for rent must be deemed to have been extinguished. The fact that in that case the liability under the rent decree was notified in the sale proclamation makes no difference, because the notification was necessary in order to affect a stranger purchaser and not the landlord purchaser who himself held the rent decree. Mookerjee J. said:
When they took out execution of the money decree against the tenure, they were bound to notify that they held a decree for rent enforceable against it; if they had not notified the rent charge, they could not have subsequently pursued the property in the hands of a bona fide purchaser, for the satisfac-tion of their dues.
The question of a bona fide purchaser without notice of the rent charge cannot possibly arise in the case of the landlord-purchaser. In Kamaldhari Lal v. Tarachand Marwari A.I.R 1935 Pat. 118 James J. said "an auetion-purchnser who purchased a holding with notice that it is saddled with liability for arrears of rent for a period anterior to. the date of the sale is liable for the rent of that period." It follows that where the auction-purchaser is the landlord who has necessarily notice of the rent charge, his''purchase is subject to that charge. In other words, the charge is extinguished. In the Full Bench decision of this Court in Nripendra Nath v. Kuldip Misra AIR 1938 Pat. 545 in which the above two cases were approved, it was held that a landlord auction-purchaser who purchases a holding in execution of a decree for rent with notice that it is saddled with liability for arrears of rent for a period anterior to the date of the sale is liable for the rent of that period and consequently such arrears are extinguished when the holding is thus sold and a suit for the recovery of such arrears is not maintainable. That was a case under the Bihar Tenancy Act in which the corresponding Section 65 simply says that "the rent shall be a first charge on the tenure or holding," but contains no provision similar to the proviso to Section 60, Chota Nagpur Tenancy Act. But the principle of that decision is undoubtedly applicable to a case under the latter Act where the tenure or holding is purchased by the landlord in execution of a money decree subject to the liability for arrears of rent remaining due at the date of the sale. In that case also the arrears of rent were notified in the sale proclamation, but, as I have already said, that does not make any difference where the auction-purchaser is the landlord. It was, however, held in Kesho Prasad Singh v. Mt. Paranjota, Kuer AIR 1921 Pat. 184 as the headnote runs, that:
If the landlord obtains two rent decrees against, a tenant and first executes one decree by sale of the-holding without notifying that the sale is subject to the other decree, and purchases the holding himself, he is not debarred from executing the other decree'' against the remaining properties of the tenant.
Das J. who delivered the judgment (Ross J. concurring), distinguished the case in Sailaja Prasad v. Gyani Das (13) 18 C. L. J. 29 : 16 Ind. Cas. 355 on the ground that in that case the landlord had notified the rent charge in the sale proclamation, and, therefore, by virtue of the notification he purchased the holding subject. to the rent charge. He said:
In the case before us, the landlord did not purchase the holding subject to any rent charge. He did not notify, at the time of the sale, that the holding was being sold subject to a rent charge in his favour. In my view, he did not elect to hold the holding responsible for his rent, and can now proceed to execute the rent decree against the properties of the judgment-debtor other than the holding.
This decision is distinguishable on two grounds, (1) that it was a case under the Bihar Tenancy Act in which, as I have already said, there is no provision similar to the proviso to Section 60, Chota Nagpur Tenancy Act, and (2) that both the decrees in that case were rent decrees.
If the decree in execution of which the holding was purchased had been a money decree, the decision in all likelihood would have been otherwise. It may be mentioned that this decision was not referred to in the later Full Bench case Nripendra Nath v. Kuldip Misra AIR 1938 Pat. 545.
In Midnapore Zamindary Co. Ltd. Vs. Haripada Roy and Others, decided by Ghose and Patterson JJ., it was held that where a landlord has purchased a tenure in execution of a decree, other than a decree for its rent, he is. not entitled to recover from the tenure-holder the rents for a period anterior to the sale, although the arrears may not have been notified in the sale proclamation. Ghose J., who-gave the leading judgment said:
The tenant was liable for those arrears. The landlord has now placed himself in the position of: that tenant by purchasing his right, title and interest. Then can the landlord still say that he can claim those arrears from the person whose right, title and interest he has purchased? ....Rent is by operation of law the first charge on a tenure and ordinarily the purohaser would take the tenure subject to the charge: Moharanee Dasya v. Harendra Lal Roy 1 C.W.N. 458.... Moreover so far as the landlord auction-purchaser is concerned, he does not require any notice that arrears of rent, are due.
Patterson J., who agreed, but for different reasons, said:
The plaintiff purchased the tenure with full knowledge that arrears of rent were due to him in respect thereof, and he must further be presumed to have known that by purchasing the tenure himself, he was destroying his own security by making it impossible for him to create and enforce a charge on the tenure on account of those arrears by the only method open to him, viz., by obtaining a rent decree and executing it as such. It is only reasonable to suppose that the plaintiff had these considerations in mind at the time of the auction sale, and that he regulated his bidding-accordingly, with a view to recovering the arrears of rent due to him by means of his purchase of the tenure.
This decision supports the view I have expressed above. It is said that at the time of the auction-purchase in execution of the first money decree there was no subsisting charge for the arrears of rent for which the second suit was brought, because the decree which was in the meantime passed in this second suit was a money decree and not a rent decree. After the money decree was passed, it is said, the charge was no longer enforceable. But execution of the first money decree was started after the institution of the second suit for arrears of rent and sale proclamation was issued when the second suit was pending. On the date of hearing of the second suit, the landlord gave up some of the defendants against whom summonses were not served with the result that a money decree was passed ex parte against the defendants who had been served with summonses. If the landlord had not given up some of the defendants and had taken steps to serve them with summonses, he would have obtained a rent decree in which case it would not have been open to him to urge that his purchase under the money decree would not be subject to the liability under the rent decree. Would, then, the fact that he, by his own default, did not get a rent decree alter the situation? When the sale proclamation was issued, he knew full well that he had a charge on the tenure for the arrears of rent sued for. He put a low value in the sale proclamation, and eventually at the sale he purchased the tenure at an apparently low price which did not exceed the decretal amount. In the circumstances, it will be unreasonable to hold that the landlord purchased the tenure free of the liability for the arrears of rent in respect of which the second money decree was obtained. In my opinion, therefore, the second money decree must be deemed to have been satisfied when the landlord purchased the tenure in execution of the first money decree. I would accordingly dismiss the appeal with costs.
Fazl Ali C.J.
I agree.
Shearer J.
I agree.