Srimati Moharanee Dasya and others vs Harendra Lal Roy Chowdry

The Plaintiff, as mortgagee, obtained a decree against the Defendants, the mortgagors, for the sale of the mortgaged property, and, in execution of his decree had it sold and himself purchased it. Subsequently, the zemindars sued the Defendants for the rent of the property for a period anterior to the date on which the sale was confirmed, and partly anterior to the date of the sale, and got a decree in execution of which the property (a taluk) was proclaimed for sale. The Plaintiff, to protect it, satisfied the decree, and then brought this suit to recover from the Defendants the amount paid. These facts being admitted, no evidence has been taken. The Subordinate Judge dismissed the suit holding that the Plaintiff purchased the taluk charged with the rent, and that he was in the position of a person, who purchased a mortgaged property, subject to a prior charge, and by paying the charge improved to that extent the value of the property.

The District Judge, on the other hand, held that the Defendants were bound, under sees. 69 and 70 of the Contract Act, to pay to the Plaintiff the sum which he had paid on their account. As, however, the Judge considered that the rent-decree was a mere personal decree against the Defendants, that the taluk could not have been sold in execution of it, and that the Plaintiff satisfied the decree, not to save the taluk, but for his own convenience and safety, and to avoid possible litigation, it would be difficult, and indeed it is not attempted, to uphold his decision on the grounds on which it rests.

The District Judge was, we think, wrong in assuming that the taluk could not have been sold in execution of the rent decree. The rent was, by operation of law, a charge on the taluk, and although the Plaintiff was not a party to the rent suit, no point was made of that, and it would, moreover, be immaterial if the decree was obtained against the registered tenants. It must, on the pleadings, be taken that the taluk could legally have been sold in execution of the rent decree, and that the Plaintiff, to save the taluk, satisfied the decree. It follows that the Plaintiff purchased the taluk subject to the charge for rent in the sense at least that he was bound to pay it, if the landlord proceeded to execute his decree by bringing the taluk to sale. The question is whether, having satisfied the decree, he can recover from the Defendants, the defaulting tenants, who were in possession for the period for which the rent was due, the amount paid ?

We think the Judge is right in saying that there is no strict analogy between a charge for rent and a mortgage charge. Money due for rent is both a personal debt, and a first charge on the land in respect of which it is due, and the landlord can enforce his decree either by selling the land in some cases even if it has passed into other hands, or by selling other property of the judgment-debtors. In the case of a mortgage charge there is, strictly speaking, no personal debt so long as the security is available. Nevertheless, the rent is, by operation of law, a first charge on the land, and a person, who purchases the land at an execution sale, must, we think, in the absence of anything to denote the contrary, be taken to purchase it, charged with the rent which is due in respect of it at the time of his purchase, and there being no privacy between him and the judgment-debtors, we do not see how he can recover from the latter the money which he is obliged to pay for the rent due at the time of his purchase.

It is argued, however, that the Plaintiff in this case is not in the position of an ordinary purchaser at an execution sale that he purchased mortgaged property under a decree for sale, and that there being a contract, express or implied, as between the mortgagors and the mortgagee, that the mortgagors would pay the rent as it became due, he is entitled to the benefit of that contract, and can recover from them the amount which he has been obliged to pay on their account. The Plaintiff is in fact the mortgagee, but that can make no difference, and the argument must apply to the case of any purchaser of mortgaged property in execution of a decree for sale. We do not think it is necessary to consider whether this argument is sound, as there is, in the present case, no sufficient foundation for it. The plaint certainly sets out that the property was mortgaged, that the Plaintiff was the mortgagee, and that the Defendants or their predecessors were the mortgagors, and that the Plaintiff purchased at a sale in execution of a decree for sale; but the claim is not in any way based on contract, we do not know what the contract was, and we cannot assume on the pleadings that there was any express or implied contract of the kind alleged. The Plaintiffs'' case simply was that the debt for rent was a personal debt of the Defendants, and that as they were in possession and enjoyed the profits of the land during the period of which the rent was due, they were bound to pay it. The case cannot be enlarged so as to embrace a claim founded on contract. We have not attended to any of the cases cited in the argument, as they all seem distinguishable. As the Plaintiffs have not made out a case for the recovery of this money, the decree of the District Judge must be set aside, and that of the Subordinate Judge restored, and the Respondents must pay the costs of the Appellant in this and the lower Court.