Sital Singh and Another vs Ramjiprasad and Others

James, J.—The petitioners occupied a holding, a portion of which had been transferred by sale in 1315 Fs. and another portion of which had been mortgaged in 1924 A.D.

The landlord instituted a suit for arrears of rent and obtained a decree in 1934 before the amended Section 26, Bihar Tenancy Act, had come into force. A portion of the decretal amount was paid off by the judgment-debtor; but the holding was advertised for sale and was about to be sold when the mortgagees stepped in and paid off the balance due under the rent decree and subsequently obtained possession u/s 171, Bihar Tenancy Act. The purchasers objected to this, but their objections were overruled by the Munsif. They have made no application in revision and we are not concerned with their position. The judgment-debtor objected on the ground that the decree under execution was not a rent decree and also on the ground that the usufructuary mortgagee owed a large amount for arrears of rent. These objections also were overruled and the mortgagees were placed in possession.

It is argued on behalf of the petitioners that the decree under execution could not be regarded as a decree under the Bihar Tenancy Act, because when it was under execution it affected two holdings. Between the time of the signing of the decree and the execution, Section 26-N, Bihar Tenancy Act, came into force by which the landlord was deemed to have given his consent to transfers made before 1923 and to the distribution of rent upon which the vendor and the vendee had agreed.

It is argued that since by the time the decree came to be executed it affected the rent of two holdings, it could no longer be regarded as a rent decree, but at the time when the suit was instituted, this transfer had not been recognized by the Lndlord and the judgment-debtor was the only tenant recorded in his sherishta.

The suit was properly framed as a suit for arrears of rent governed by the Local Tenancy Act and the decree which was obtained was a decree which could be executed under the Tenancy Act: or in other words, a rent decree. When Section 26, Bihar Tenancy Act, came into effect, the purchasers of part of the holding thereby obtained the right to object to the transfer by sale of so much of the holding as was then purchased, because they were not parties to the decree and new rights had been conferred upon them by the new legislation, but the decree remained a rent decree and for the purposes of execution, the parties were governed by the provisions of the Bihar Tenancy Act. When the holding was advertised for sale and the judgment-debtor failed to pay up the arrear, the usufructuary mortgagees were entitled to step in to pay the balance of rent due and to claim that the provisions of Section 171 of the Act should be applied. As I have said, we are not here concerned with the rights of purchasers of other parts of the holding; but the judgment-debtor could not object to the application of the provisions of Section 171, Bihar Tenancy Act, in favour of the mortgagees. Grievance is made of the fact that the judgment-debtor was himself ready to pay off the whole amount, but if this were really true, he should have paid off the mortgagees, when he would have recovered possession of the rest of the holding.

It is objected on behalf of the petitioners that the mortgagees themselves are in arrear for rent of the mortgaged property; but the judgment-debtor who desires to recover possession from the mortgagee must pay off the amount which the mortgegee has paid: Ram Lal v. Thakur Das reported in AIR 1938 Pat. 94. When he does this he will be entitled to recover possession of so much of the holding as has not been alienated by himself or his purchasers. I cannot interfere in this case.

The application must be dismissed with costs; hearing fee Rs. 32.