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MahimuddIn Vs. Panu Sahani and ors. - Court Judgment

LegalCrystal Citation
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal Nos. 3 to 9 of 1948
Reported inAIR1952Ori64
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47, 47(3) and 151 - Order 21, Rule 58 - Order 22, Rule 10; Tenancy Law; Orissa Tenancy Act, 1913 - Sections 74, 220 and 221; Transfer of Property Act, 1882 - Sections 52
RespondentPanu Sahani and ors.
Appellant AdvocateB.K. Pal, Adv.
Respondent AdvocateR.N. Misra, Adv.
Cases ReferredBaijnath v. Tejpalli
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....jagannadhadas, j. 1. these seven misc. appeals are against the orders in misc cases nos. 30, 65, 33, 34, 32, 64 and 31 respectively. since all these misc. cases and appeals arise in the coarse of the execution of the same decree and involve a common question of law, they have been heard analogously both in the lower court and here. they arise in the following circumstances, one sk. bhikari obtained a preliminary mortgage decree on 6 7-1936, which was made final on 25-11-39 against certain sahanis on foot of a simple mortgage dated 22- 7-22. the mortgage is said to have comprised 21 lots covering an aggregate extent of 16.20 acres and the amount due under the mortgage decree by the date of the present execution filed in 1946 was near about rs. 10,030. the decree-holder assigned the decree.....

Jagannadhadas, J.

1. These seven misc. appeals are against the orders in Misc cases Nos. 30, 65, 33, 34, 32, 64 and 31 respectively. Since all these misc. cases and appeals arise in the coarse of the execution of the same decree and involve a common question of law, they have been heard analogously both in the lower Court and here. They arise in the following circumstances, One Sk. Bhikari obtained a preliminary mortgage decree on 6 7-1936, which was made final on 25-11-39 against certain Sahanis on foot of a simple mortgage dated 22- 7-22. The mortgage is said to have comprised 21 lots covering an aggregate extent of 16.20 acres and the amount due under the mortgage decree by the date of the present execution filed in 1946 was near about Rs. 10,030. The decree-holder assigned the decree to the common appellant in all these appeals by a registered-deed, and it is the assigneethat is now executing the decree. In the course ofthis execution, these seven applicants intervened by petitions under Order 21, Rule 53 and Section 47, Civil P. C. claiming that some out of the plots comprised in the mortgage decree should be exempted from the execution sale proceedings that were then pending. All of them were either purchasersor transferees from purchasers of specific plots in execution of certain rent-decrees obtained by the respective landlords of the holdings within which 'those plots were situated. (For convenience, they will hereinafter be referred to only as purchasers). We have been informed that these seven petitions relate to six out of the 21 lots under the mortgage and comprise a total extent of about 11 acres. The common contention of all these applicants is that since they have purchased the respective plots under rent sales, and in realisation of a statutory first charge for arrears of rent, the plots purchased by them are not bound by the mortgage-decree, that therefore they take it free of any claim under the mortgage of 1922 on the basis of which the decree under execution wasobtained.

2. It has been found that four oat of these seven applicants had applied after their purchases, for annulment of the encumbrance of 1922 under Section 211 of the O. T. Act. Under that section, the application for annulment to be made within one year of the date of sale or date of knowledge of the existence of the encumbrance. The learned Judge held two out of the applications as being within time and two as beyond time. Thus in respect of Miac. Cases Nos. 33 and 64 which are under appeal as M. A. Section 5 and 8 respectively, the learned Judge held that the properties comprised therein are completely exempt from any claim under the mortgage or under the mortgage-decree. As regards the other two applications, which are Misc. cases Nos. 30 and 31, and which give rise to M. A. Section 3 and 9 respectively, the learned Judge held that the annulment applications were beyond time. In respect of these two misc. cases, as well as in respect of Misc. cases Nos. 65 34 and 32 from which arise Misc. Appeals Nos. 4, 6 and 7 in which no applications for annulment were at all made, the learned Judge, treating all the five as on the same footing, has held that the non-annulment of the encumbrance under Section 221 of the O. T. Act neither give any priority to the mortgage-decree nor had the effect of rendering the mortgage-decree binding against them. He held that the result of non-annulment was only that those applicants lost the benefit of escaping entirely from the burden of the mortgage on which the mortgage-decree was based, and that the rights between the mortgage decree-holder and the rent-decreo-auction-purchasers have to be worked out in a separate and properly constituted suit. In this view, he held that the applicants in all these seven misc. applications were entitled to remain in possession and that the sale proceedings in execution of the mortgage-decree could not be continued as against any of them. It is against these orders that the present appeals have been brought by the assignee-decree holder.

3. So far a Misc. Appeals Nos. 5 and 8 arising out of Misc. cases Nos. 33 and 64 are concerned, learned counsel for the appellant fairly conceded that he cannot sustain the appeals, since it has been found that the applicants therein had made annulment applications under Section 221 of the O. T. Act in time and since so far as they are concerned, the encumbrance, having been annulled, must be treated as non-existent. The mortgage-decree is, therefore, of no avail aa against those properties.

4. The argument before us has accordingly been confined to Misc. Appeals NOS. 3, 4, 6, 7 and 9. At this stage, a preliminary objection raised by the respondent's counsel may be noticed. He urges that none of these applicants who are respondents in these appeals were eo nomine arties to the decree and that their applications are only under Order 21, Rule 58 and that consequently noappeal lies against the orders therein. This, contention, however, is untenable. All these applicants have purchased the respective items of property in execution of rent decrees during the pendency of the execution proceedings under the mortgage decree. Being purchasers pendente lite it is possible to argue that they are prima facie representatives of the judgment-debtors and that therefore questions arising between them and the decree holder fall within the scope of s. 47, Civil P. C., see Ishan Chunder v. Beni Mudhub 84 cal. 68, followed in Ajodnayatal v Brijkishore, A. I.. R. (27 1940 Pat. 615. No doubt, the point that arises on the merits of those cases is whether in spite of the purchases being pendente lite, these various applicants are bound by the mortgage-decree, having regard to the fact that they are entitled to a statutory prior charge. The question whether they are representatives or not of the judgment-debtor, therefore, depends on a determination of the question whether or not they are bound by the mortgage-decree. But 8. 47 (3), Civil P. O. provides just for such a contingency and says :

'Where a question arises as to whether any person is or is not the representative of a party, such question shall, for purposes of this section be determined by the Court,'

In view, therefore, of this provision, the applicants must be treated as the representatives of the judgment-debtor and as parties to the decree for the limited purpose of deciding whether or not they are bound by the decree. If it is found that they are bound by the decree, then all questions arising between them relating to the execution of the decree, must be determined in execution itself and not by a separate suit.

5. Before dealing with the common question as to whether the various applicants, who had not taken the advantage of the procedure by way of applications for annulment within time under Section 221 of the O. T. Act, are bound by the decree, it will be convenient to notice a few other minor points arising in some of these appeals.

6. In Misc. Appeal No 3 arising out of Misc. Case No 30, the learned Judge's finding that the application for annulment was out of time, depended on whether the applicant became aware of the existence of the mortgage or the mortgage decree only six months after his purchase and therefore was within time when he made the application. The learned Judge disbelieved the applicant's plea that he was not aware of the mortgage decree till after six months of his purchase and we see no reason to differ from him in that finding. We agree, therefore, with the learned Judge that his case must be treated on the footing that there was no application at all. Misc. Appeal No. 9 arising against Misc case Ho. 31 is also a case where there has been an annulment application which was admittedly beyond time. The applicant therein relied on the f act that in the course of the execution proceedings under the rent decree, which culminated in his purchase of the holding, the mortgagee decree-holder filed an application on 10-2-45 under Order 21, Rule 90, Civil P. C., for setting aside the rent sale, That application appears to have been ultimately dismissed on 7-5 46. The applicant-respondent herein, contended in the lower Court as he now contends again before us that in the computation, of the period of one year for annulment under Section 221 of the O. T. Act, he is entitled to a deduction of the period from 10-2-45 to 7 6 46. He argues that during the period, his title was in dispute at the instance of the present decree-holder himself and that it would have been useless for him to apply for annulment during that period. He urges that the decree-holder who, by his challenge, kept the title by purchase in suspense, cannot now turn round and say that the application for annulment is beyond time. In the lower Court as well as before us the case in Bassukuar v. Dhun Singh, 11 ALL 47, has been cited in support of the broad proposition that when the very title which furnishes the locus standi for an application is in dispute, any period of limitation for an application to be made by such a person must exclude from its computation the period for which the title remained in dispute. As the learned Judge rightly pointed out that case is not an authority for any such broad proposition and has no application to the facts of the present case. In that case the suit was for recovery of a debt and their Lordships pointed out that the facts brought it either under Section 65, Contract Act, or under Article 99', Limitation Act. The question there was, on the facts in that case, when the agreement may be said to have been discovered to be void, or when the consideration may be said to have failed. The decision is perfectly intelligible inasmuch as an agreement cannot be Said to have been discovered to be void or the consideration to have failed, until the litigation relating thereto ended. Bat that principle can have no application to the present case, where Section 221 of the O. T. Act statutorily provides for a period of one year from the date of the rent-sale. That date is the date on which the sale, in fact, took place irrespective of the challenge to its validity. The learned Judge was therefore right in treating the case in 11 ALL. 47 (p c.) aa having no application and in treating Misc. case No. 81 as one in which there was no application for annulment.

7. In M. a. Nos. 4 and 6 arising against Misc. Cases Nos. 65 and 34 respectively, the applicants purchased from one Ajirddin, who in turn, was the purchaser in the rent-decree Bales. They raised the question that their vendor was a benamidar for the original decree-holder Bhikari, that they were in the position of purchasers from the decree holder himself and that therefore the decree cannot be executed against them. This plea of benami was rejected by the learned Judgein the Court below and that contention has not been repeated before us. It may also be mentioned that the rights of the assignee decree-holder has been challenged in the Com t below on the ground that the assignment is benami. That plea was negatived by the lower Court and has not been repeated before us.

8. Therefore the common question that arises in all the five appeals M. A. nOS. 3, 4, 6, 7 and 9 is as to whether or not the applicants respondents herein are bound by the mortgage-decree and if so what rights they are entitled to, in the course of the execution proceedings in view of their prior rent charge.

9. As has been stated at the outset, the final mortgage decree under execution was pasted on 35-11-1939 and the preliminary decree on 6-7-1936. In M. A. 3 (arising out of Misc. Case No. 30), the rent-decree-puichase waa on 15-7-1939. In M. A. 4 (arising out of Misc. case No. 65), the rent-decree purchase was on 13-10-1941. In M. a. No. 6 (arising out 'of Misc. case NO 84) the rent-decree purchase was also on 13 10-1941. In M. A. 7 (arising out of Misc. case No. 82) the rent decree purchase was on 30 5 1938. In M. a. 9 (arising out of Misc. case No. 3i) the rent-decree-purchase was on 20-12-1944. It may thus be seen that in M. A. Nos. 4, 6 and 9 the rent-decree purchases were subsequent to the final mortgage-decree while in M. a Nos. 3 and 7, the rent decree purchases were in between the date of the preliminary decree and the final decree. It is, therefore, clear that all these purchases in execution of the rent-decree were during the pendency of the mortgage action and of the execution proceedings thereon. On behalf of the appellants, it is contended that all these purchases are affected by lis pendeus and that therefore all these purchasers should be brought on record in the execution proceedings, and that the decree can be executed against the items of property in their hands. The appellant's counsel recognises that having regard to the decision of the Full Bench in Maliadeo v. Jagdev Singh, A. I. R. (26) 1939 Pat. 339, the rent-charges in respect of which the various rent-decree purchases were made have priority over the mortgage of the appellant of the year 1922, on the basis of which mortgage-decree under execution was obtained. That case lays down that 'a purchaser not being a landlord) of a holding in exacution of a decree for rent has a charge for the amount of the decree for rent as against the holder of a mortgage of the part of the holding executed before the purchase, and is entitled to the same rights as the purchaser of a holding in execution of a decree passed on a prior mortgage. If a purchaser in execution of a rent decree fails to annul an encumbrance under Section 167, the encumbrance will continue, but he will not thereby lose his priority over the holder of the encumbrance. ' In view of this proposition of law, which must now be taken to be well-established, the appellant's advocate maintains that though the right of the purchaser respondents to a first charge is not affected by the mortgage-decree, the mort-gage-decree binds these purchases, which are pendente lite and that therefore the execution proceedings should proceed against them also, duly providing for the recognition of the rights by way of first charge in the execution itself.

10. On behalf of the respondents reliance has been placed on the decision in Bikala v. Sheik Ah, I. L. E. (1950) Cut, 486. In that case it has been held that where there are two mortgages on a property, and two suits are brought on each of the mortgages, without impleading the other mortgagee and purchase in court auction is made in execution of the decree in one of the suits, while in respect of the other suit execution proceedings are still pending, that purchase is not affected by the doctrine of lis pendens. It is, therefore argued that since the position of the rentdearee-purchaser is that of a prior mortgagee who his purchased through Court in realisation of his mortgage, that purchase is not in any way affected by the fact that the suit on the second mortgage or execution proceedings thereon are pending. In answer to this, it is suggested by learned counsel for the appellants that the case in I. L. R. (1950) cut. 486 is distinguishable inasmuch as that was a case where in fact there were two mortgages on the property before the respective suite on either of the mortgages were in fact, filed, so that each-mortgagee, when he brought his suit was by virtue of Order 34, Rule 1, bound to implead the other as a party-defendant in his suit, it is pointed out that in the present case the rent-decree purchases were all after the institution of the mortgage-suit and that there was therefore no possibility of any of these purchasers being made party-defendants to the mortgage-suit itself. It is contended that the Full Bench decision in A. I. R. (26) 1939 Pat 339 while it recognises the statutory prior charge in favour of the rent-decree purchaser over any pre-existing encumbrance, does not amount to saying that the charge itself, must be deemed by way of a legal fiction to have come to existence at any particular time before the execution of the mortgage sued upon. It is said that the only effect of the Full Bench decision is to give the rent-decree-purchase, a preferential right over the mortgagee decree holder to realise the amount of the rent charge from out of the holding but not to assimilate him to the position of holding a mortgage over the holding in fact earlier in point of time than the suit-mortgage. There is considerable force in this contention. The first charge which is available for realisation of arrers of rent is clearly no analogous to a regular mortgage on the holding itself and differs from the same in many respects. For instance, under the Orissa Tenancy Act, the rent-decree-bolder if he wants to proceed against the holding to realise his charge, bas first to get an attachment of it under Section 216. The suit for realisation of rent is by itself nothing more than a suit for money and is not asuit relating to an interest in immovable property and the doctrine of lis pendena does nob apply. (See Giridhari Mohanty v. Abdul Khan, I. L. R. (1950) cut.'195). Unlike as in a decree on a mortgage, a rent-decree holder can either proceed personally against the defaulting tenant or against the holding at his option, without the restriction imposed by Order 34, Rule 15, Civil P. C. These features have been fully pointed out in the judgment in I. L. R. (1950) Gut. 195 at pp. 203 to 205. The contention, therefore, that the rent-decree purchaser who has a priority in respect of the rent-charge 13 not in the same position as that of a purchaser in execution of a decree obtained on first mortgage of the property appears to be well founded and 15 may bo possible to distinguish the case in I. L. R. (1950) cut. 4SS on this ground.

11. It has to be appreciated, however, that Section 52, T. P. Act, which enunciates the doctrine of is pendens, does not in terms, apply to sales in execution of a decree. It is only on general principles of law that the said doctrine hag been held to be applicable to involuntary sales of immovable property during the pendency of litigation relating thereto. That position is now too well- established to be capable of controversy, since the same was laid down in the Privy Council cases in Radha Madhab v. Manohur Mukerji, 15 Cal. 756 and Moti Lal v. Kasrabuldin, 25 Cal. 119 and a host of other cases following thereon. The principle underlying these cases, when examined, is found to be that what is purchased at an involuntary sale is the right, title and interest of the judgment debtor and that if at the time of that sale, there is pending another suit for the determination of or affecting the right, title and interest of the judgment debtor, the purchaser at that involuntary sale necessarily takea subject to the decision thereof. It is on this principle that the Full Bench case in 24 Cal. 62, pointed out that the purchaser under execution sale of the judgment debtor's interest is the representative of the judgment-debtor as much as the purchaser at a private sale and is, therefore, bound by the decree.

12. It has accordingly to be seen, in order that the doctrine of lis pendens may apply to purchases in execution for realisation of the rent charge for arrears of rent whether what the purchaser at such a sale gets is the right, title and interest of the judgment debtor. The provisions of the Orissa Tenancy Act make it absolutely clear that such a purchaser, purchases not merely the right, title and interest of the defaulting tenant, but the holding itself provided that the landlord's interest as well as the tenant's interest are fully represented throughout the proceedings both in the suit and in the execution upto the point of the sale. It is not disputed that this is so in the present case. It cannot, there, fore, be said t at the rent-decree purchasers, respondents before us, in the various appeals are purchasers merely of the right, title and interestof the defaulting tenants. Indeed, that is obvious, since if they are merely representatives of the judgment-debtors, they can have no priority over the suit-mortgage. Therefore, consistently with the view taken in A. I. R. (26) 1939 rat. 339, it must be held that the rent-purchasers are not merely the purchasers of the right, title and interest of the judgment-debtor in the mortgage suit and are not, therefore, his representatives. The decree in the mortgage-suit cannot, therefore, bind them and the principle of lis pendens cannot apply against them. This view is clearly supported by the decisions in Surat Lal v. Hurlidkar, A. I. R. (5) 1918 Pat. 99 and Mt. Jamuni v. Bhola Ham, A. I.R. (23) 1930 Pat. E6i. In A. I, B. (23) 1936 Pat. 561, his Lordship Justice Fazl Ali has held that the appellant therein who purchased certain property in execution of a rent decree during the pendency of proceedings in execution of a mortgage-decree relating to the property is not a representative of the judgment-debtor since the purchaser was not bound by the mortgage-decree. In A. I. R. (5) 1918 Pat. 99 also on similar facts, it has been categorically hold that the purchaser under a mortgage decree, could not oust the purchaser under the rent decree even though there has been no notice for annulment of the encumbrance. It may be noted that the mortgage-decree in that case was obtained on 18 1-1910 and the sale in execution thereof was on 36-7-1910. Hence the rent-auction purchase was during the pendency of the execution proceedings on the mortgage-decree. Those caae3, therefore, are clear authority for the position that the respondents in the present appeals are not affected by lis pendens and that they cannot be held to be representatives of the judgment debtor in the mortgage-decree and are not bound by it, It follows that the decree-holder cannot claim as of right to execute his decree against the items of property comprised in the mortgage decrees which have been purchased by the various respondents in these appeals in the rent-decree proceedings and of which they have obtained possession.

13. This, however, does not dispose of these appeals. The records of the Execution case No. 142/46 in the course of which these miscellaneous cases wore filed show that the assignee-decree-holder mentioned in the execution application itself the fact that these respondents and others purchased some portion of the mortgaged-property in rent-sales and wanted them to be impleaded as parties in the execution so that he may be able to bring these items also to sale. Thus, in the execution case, he showed respondent in M. A. 3 as Opposite Party No. 7 : respondent in M. A. 4 as Opposite Party No. 13; respondent in M. A, 6 as Opposite Party No. 17; respondent in M. A. 7 as Opposite Party No. 11 and respondent in M. A. No. 9 as opposite Party No. 9. Order NO. 2 in the execution case dated 21-11-1946 is as follows :

'The decree bolder in this execution casa wants to implead one Madhu Sudan Acharyya and 15 others, in the category of judgment-debtors alleging them to be subsequent purchasers of a portion of the mortgaged property in the rent sale.'

Order No. 5 dated 7-1-1947 shows that notices under Order 21, Rule 22 were issued on the execution application. The subsequent course of proceedings in the execution case show that these respondents and other purchasers, presumably on receiving the notices came up with independent applications under Order 21, Rule 58, and Section 47, Civil P. C., and these applications were registered as miscellaneous cases and dealt with. The learned Judge in the Court below held that these respondents are not bound by the mortgage-decree and that consequently execution cannot proceed against them and hence allowed the miscellaneous cases. But lie has not dealt specifically with the assignee-decree-holder's prayer for permitting him to implead these various respondents as parties in the execution case so that their rights may also be adjusted without a fresh suit. In the execution application, the assignee decree-holder categorically asserts that these purchasers should either be called upon to redeem the mortgage-decree or to submit to the sale of their properties so that their respective rent charges may be paid out o the sale proceeds. This prayer, therefore, that the execution may be allowed to proceed against these respondents by impleading them as parties has to be dealt with independently of the question whether or not the respondents are bound by the mortgage-decree us such, or are representatives of the judgment debtors. It is suggested on behalf of the appellant that this course may be permitted with a view to shorten litigation and that there is nothing in law to prohibit it.

14. The question, therefore, that arises for consideration is whether persons in the position of these respondents though not, in terms, bound by the decree, can be permitted to be added in the execution proceedings for the purpose of avoiding multiplicity of litigation. In a case where the rent-decree purchase was prior to the institution of the suit on the mortgage, it cannot be doubted that such a purchaser is both a proper and necessary party in the mortgage-suit under Order 34, Rule 1. If such a purchase takes place during the pendency of the mortgage-suit, there is no reason wby the Court should not exercise its discretion and permit such a purchaser to be added as a party defendant, if an application in that behalf is made. The Court's powers to add proper parties during the pendency of a suit, are quite ample, and it would obviously avoid multiplicity of litigation, if such a purchaser is permitted to bo impleaded at that stage under Order 1, Rule 10. Order 22, Rule 10 might also well cover a case of that kind. Though a purchaser at a rent-sale does not purchase merely the right, title and interest of the defaulting tenant, there can be no doubt that such right, title and interest had devolved on him by involuntary assignment All that is meant by saying that he is not the purchaser of the right, title and interest of the defaulting tenant, I apprehend, is that his rights are not merely those of an assignee of the right, title and interest inasmuch as he also gets the prior rent-charge and the right to annul all intermediary encumbrances. To my mind, therefore, there can be no objection to treat the case of a purchaser under a rent-sale as one falling under Order 22, Rule 10, if the purchase was during the pendency of the suit, and to permit him in an appropriate case to be added as a party defendant in order to avoid multiplicity of litigation. If the purchase is subsequent to the institution of the suit, the plaintiff-mortgagee could not previously have anticipated the purchase and complied with the provisions of Order 34, Rule . 1 and hence it would be obviously proper and convenient to allow such a person to be joined so that the principle underlying Order 34, B. 1 may be complied with. If this view is correct, I can see no reason why such a purchaser cannot be impleaded in execution proceedings as well, so that the execution may be taken or continued as against him also when required.

15. It has been suggested that Order 22, Rule 10 would not apply to such a caso. But it Las been pointed oat on the other side that Oder 22, Rule 12 excepts only the application of Rules 3, 4 and 8 of that Order to proceedings in execution, but not of Rule 10, There appears to be some conflict of judicial opinion on this matter as pointed out in Hemchandra v. Annapurna Debi, A. I. R. (19) 1932 Cal. 423. In A. I. R. (27) 1540 Pat. 615, their Lordships were inclined to hold that Order 22, R 10 will apply to execution proceedings. But whether that is so or not, both A. I, B. (19) 1932 Cal. 423 and A. I.R. (27) 1940 Pat. G15 hold that the Court, has power under Section 151, Civil P. C., to allow execution to proceed against a person on whom the interest of the judgment-debtor has devolved in an appropriate case, But as has been pointed out in A. I. R. (27) 1940 Pat. 615, it must be borne in mind that if such permission is granted in an appropriate case, it does not follow that the decree already obtained is necessarily binding and effective against him in all respects. It will be open to the person so added to raise questions germane to the execution of the decree as against himself, which have not been previously raised and determined in the suit itself. Of course, such permiesion will not be granted in the exercise of the Court's discretion, where the questions so raised are of a complicated nature, or where there is reasonable scope for the party so added to raise questions attacking the decree itself, such as for instance, a plea as to the genuineness of or of consideration under the mortgage and so forth. It appears to me, therefore, that there is nothing in the procedural law to prevent the purchasers at a rent-sale being added as parties in the course of a suit on the mortgage of a holding or in theexecution of the decree obtained on that mortgage, where such purchases are subsequent to the inatitution of the suit or of the passing of the decree. We have been shown no authority against the propriety of such a course and all reason and convenience are in favour of permissibility of such a course. Otherwise every time there is a rent-sale of items of property comprised in a mortgage-suit, subsequent to the institution of that suit, the mortgagee's action is to that extent defeated and a fresh suit has to be filed. I may notice that in the converse case of private or other sale of a holding pending, a rent-suit relating to the holding, it has been held that such implead-ing is permissible by his Lordship the learned Chief Justice in I L. R. (1950) Cut. 195 at p. 200, relying on explanation to Section 31 (B), O.T. Act. If this is permissible, it will be anomalous to hold that the rent sale purchaser cannot 6 be impleaded in execution of a mortgage-decree.

l6. While therefore the view taken by the Court below is correct, namely, that the decree in the mortgage 'suit does not bind the rent-decree, purchasers-respondents, the question as to whether execution should not be allowed to proceed against them by making them parties to the same, in view of the circumstances in this case, has to be considered on its merits. If the execution is to be allowed to proceed, it has further to be considered, what appropriate reliefs are to be granted.

17. I am inclined to hold that on the merits of this case, the various respondents in all these appeals are to be permitted to be impleaded as parties to execution and that the rights as between the decree holders and these respondents should be determined in the present execution itself, without driving them to a separate suit. I have tried to satisfy myself whether the respondents are likely to be prejudiced by the adoption of this course and whether they would be thereby deprived of the opportunity of ventilating any reasonably available pleas, which may enable them to attack the validity of the decree itself, that is, for instance any plea aa to genuineness or consideration of the mortgage, etc. As already stated above, these respondents came up by way of regular applications under Order 21, Rule 58 in answer to the notices issued on them on account of the assignee decree holder's prayer that they should be impleaded as parties to the execution. These applications, therefore, are really in the nature of answers by the respondents to the prayer by appellant, for impleading them as parties in execution. I have read all the five applications relating to these respondents to see whether in those applications, the validity or genuineness or consideration of the mortgage itself is attacked, but I find none. What is attacked is only the reality of the assignment of the decree. Indeed, it may be assumed that there were none, because if they had any such plea available it is most unlikely that these respondents would not have taken steps to annul the mortgage itself within time, by an application under Section 221, O. T. Act. It would, therefore, appear that in the case of these respondents the only substantial rights that they have which require to be adjusted as against the rights of the assignee-decree-holder, are the rights which they acquired under their respective rent-auction purchases, that is, firstly the right to stand in the shoes of the mortgagor and to redeem the mortgage decree, and secondly if they elect not to do so, to treat themselves as in the position of the prior mortgagees and submit themselves to redemption by the assignee-decree-holder. In default of either, their further right is that when the item in respect of which each is interested ia brought to sale, he should be entitled to share in those sale-proceeds and to get his rent charge, i. e,, the rent decree purchase amount discharged from out at the sale proceeds in priority to that of the decree holder and to get the balance of the sale-proceeds relatable to that item, if any, after the mortgage-decree is satisfied therefrom.

18. In the result, the order will be as follows: M. A. Nos. 5 of 1943 and 8 of 1948 will be dismissed with costs and the items to which they relate will be excluded from execution.

19. The respondents, in-M. A. Nos. 3, 4, 6, 7 and 9 of 1948 will be impleaded as parties in Execution Case No 142 of 1946 and the execution will proceed also against the items covered by these miscellaneous appeals. The respondents in these appeals, as well as the other judgment-debtors, will have the first option individually or jointly of redeeming the mortgage-decree and thereafter working out their rights inter se in a separate suit, if necessary. If they do not exercise their option within a period of three months from this date, the appellant will have the right of redeeming the rent charges of all these respondents i, e., the amounts for which the respective items covered by these items, were originally purchased in rent-dearee auctions, by paying up the same within the three months after the expiry of the above mentioned period of three months given for the exercise of option by the respondents and other judgment.debtors. On failure of either of the parties redeeming the other, the mortgaged properties (except those covered by M. aS. Nos. 5 and 8 of 1948) will be sold in court auction. Oat of the sale-proceeds, the amounts payable to the respondents by way of rent-charges as above specified will be first paid up and the balance will be applied in discharge of the money under the mortgage-decree Any further balance that may remain will be rateably distributed amongst the owners of the various items including the respondents herein, according to the value of the respective items. This order will not affect the rights of contribution inter se of any of the parties.

20. M. Aa. Nos.3,4. 6,7 and 9 are allowed with the above directions, but there will be no order as to costs in respect thereof here or in the Court below.

Panigrahi, J.

21. These miscellaneous appeals arise out of execution proceedings in a mortgage decree obtained by one Munahi Shk. Bhikari against Pano Sahani and others. The preliminary decree was passed on 6-7- 1936 and was made final on 25-11-1939. There were two execution cases filed by the mortgagee-deoree-holder, and on 10-9- 1946 the decree was aesigned to Shk. Mohinuddin, the appellant in all ttiese appeals. The appellant filed Execution case NO. 142, out of which these miscellaneous appeals arise. In the course of the execution proceedings he served notices on the respondents and wanted So implead them as parties as they had purchased portions of the mortgaged holding at rent sales held in execution of rent decrees obtained by the landlord of the holding. The respondents also filed petitions under Order 21, Rule 58, Civil P.O., claiming title to the properties purchased by them at rent sales. The respondents in M. A Nos. 5 and 8 of 1949 tiled applications, under Section 221, Oriasa Tenancy Act, and obtained an order of annulment of the mortgages. The respondents in the other appeals have either failed to avail themselves of the remedy provided under that section, or, where they availed of such remedy, their petitions were filed beyond the prescribed period. All these rent sales were admittedly held during the pendency of the mortgage salt.

22. The contention raised by the decree-holder is that aa the rent sales were held during the pendency of the mortgage suit, they are hit by the doctrine of lis pendens and the auction purchasers are bound by the mortgage decree obtained by the appellant. Secondly, it is urged that as the auction-purchasers purchased the equity of redemption belonging to the judgment debtor they are the representatives-in-interest of the judgment-debtor and are liable to be impleaded as parties even in execution proceedings. On behalf of the respondents, it is contended that rent being a first charge, the auction purchasers are not affected by the mortgage decree obtained against the holdings, which are non transferable. It is further urged that they are not the representatives of the judgment-debtors and the objections raised by them do not fall within the scope of Section 47, Civil P. C. They accordingly contend that the appeals are incompetent.

23. The position of an auction purchaser at a rent sale vis-a vis a mortgagee of a non transferable holding has been the subject of numerous, some times conflicting decisions. Section 74, Orissa Tenancy Act, declares that the rent of a holding shall be a first charge thereon, and that it shall be liable to sain in execution of a decree for rent. Section 220 says that an occupancy holding shall be pub to auction and sold withpower to avoid all incumbrances. The purchaser at a sale may, in the manner provided in Section 221 and not otherwise, annul an incumbrance on the holding. Section 221 declares that a purchaser under the foregoing section, having the power to annul an incumbrance and desiring to annul the same, may, within one year from the date of the sale, or the date on which he first has notice of the incumbrance, whichever is later, present to the Collector an application in writing requesting him to serve on the incumbrancer a notice declaring that the incumbrance is annulled. The Collector shall cause a notice to be served in the manner prescribed by this section, and the incumbrance shall be deemed to be annulled on the date on which it is so served. If the purchaser does not so avail himself of the right conferred by this section, it would appear, on a plain reading of the section, that he would be bound by the incumbrance. It has therefore been held in Lakhan Choudury v. Bacha Lal, A.I.R. (17) 1930 Pat 451, that the mortgagee decree holder whose mortgage has not been annulled, can apply to have the rent sale set aside under Order 21, Rule 90, Civil P. C. A distinction has however, been drawn between a landlord purchaser and a purchaser who is not a landlord. The landlord of the holding is not bound to recognise a mortgage as he holds a first charge on the holding. Nor is he bound to admit the mortgagee to be his tenant if the mortgagee subsequently purchases it in execution of his mortgage decree. In such a case, the mortgagee acquires only the barren right as against the landlord which does not entitle him to retain possession To hold otherwise would be defeating the provisions of the Tenancy Act which declares the holding to be non-transferable by a tenant as against the landlord. If, however, the purchaser at the rent sale happens to be a stranger different considerations arise. It has been held in Sital Chandra v. Parbati Charan, 35 Cal. l. jour. 1 by Mooterji J. that a purchaser at a rent sale who has not annulled the mortgage under Section 167, Bengal Tenancy Act, which corresponds to Section 221, Orissa Tenancy Act, is entitled to redeem the mortgage, but the mortgagee cannot redeem or exercise his right as against the auction purchaser. In the Patna High Court, it is now the settled view that such a purchaser is to be regarded as a first mortgagee The purchaser in execution of a rent decree having failed to annul the incumbrance loses only the right to challenge the incumbrance, but does not lose his priority over the holder of the inumbrance. This priority is conferred by statute in declaring that rent is first charge. He can, therefore, hold it up as a shield against the claims of the mortgagee. His failure to have the inoumbrance annulled disentitles him to claim an absolute right to the holding and makes him liable to be redeemed by the incumbrancer. This is the view taken in Mdhadeo v. Jagdev Singh, 18 Pat. 676 (P. B.). The raison d'etre for thisdecision is that the auction-purchaser at a rent sale does not step into the shoes of the tenant judgment-debtor. He purchases the holding when the superior right of the landlord to a first charge is enforced. This result flows from the peculiar provisions of the tenancy law embodied in Section 220, Orissa Tenancy Act, which says that an occupancy holding shall be put up to auction and sold with the power to avoid all incumbrances. If the contention urged by Mr. Pal that the auction, purchaser is the representative of the judgment-debtor were to prevail, the result would be anomalous. While the judgment-debtor is bound by the mortgage decree, the auction-purchaser, though his representative-in-interest, would still have the right to avoid all incumbrances, but such a position would be neither logic nor commonsense. Having regard to the language of Section 220, it is difficult to hold that the purchaser at a rent sale is the representative-in-interest of the tenant who has created the mortgage and that while the tenant mortgagor is bound by the mortgage decree the auction-purchaser has the right to avoid the in cumbrance. I have, therefore, no difficulty in holding that such a purchaser is not the representative-in-interest of the judgment-debtor within the meaning of 8. 47, Civil P. C. But Section 47 is not confined merely to questions arising between the parties or their representatives. Under Section 47(3) a question whether a person is or is not a representative of a party is to be determined by the executing Court. In this case the decree-bolder gave notice of the execution proceedings to the respondents who preferred objections under Order 21, Rule 58, Civil P. O. The question whether they are the representatives of the judgment-debtors was one which could be decided by the executing Court. The appeal, therefore to this Court against such an order is competent.

24. The other contention of Mr. Pal, founded on Section 52, T. P. Act, is equally untenable. What Section 62 prohibits is the transfer by a party to a suit of property which is specifically the subject-matter of the suit, so as to affect, the rights of any other party thereto, under any decree which may be passed therein. In the case of a mortgage of a non-transferable holding the tenant has no right to mortgage the holding, nor does the mortgagee acquire a right to put the property to sale so as to affect the landlord. The mortgagee may no doubt enforce his mortgage against the mortgagor but that right does not affect the holding, nor does it entitle him to bring the holding to sale. When the holding is put up to sale in execution of a rent decree, the landlord is entitled to ignore the mortgage and the purchaser is equally entitled to have the encumbrance annulled. It cannot, therefore, be said that the mortgagee's rights are in any way affected by the rent sale within the meaning of Section 52, T. P. Act, because obviously be had no right to sell the holding. Mr. Pal's contention founded on Section 63, T. P. Act, must accordingly be negatived.

25. It was strenuously contended by Mr. Sinha. that the decree-holder cannot implead the auction-purchasers in execution proceedings as they were not parties to the suit. Order 22, Rule 10, Civil P. C., has been invoked in aid by the learned counsel for the appellant. Order 22, Rule 10, applies in terms to a suit and says that a suit may be continued by or against a person to or upon whom any interest has come or devolved. It is urged that although the language of the rule is such as to make it applicable only to a suit it may equally apply to execution proceedings which are but a continuation of the suit. Rule 12 of the same Order says that nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order. There is, therefore, no statutory bar to the application of Rule 10 to execution proceedings if, in the opinion of the Court, the property in suit or the interest of a party to the suit has devolved on persons sought to be added. 'Devolve' literally means 'to roll down' or 'to hand down'. It is not a term of art and has been used in several enactments such as the Indian Succession Act, the Madras Estates Land Act, the Government of India Act, the Provincial Insolvency Act, etc. The Privy Council in Baijnath v. Tejpalli, 48 ind App, 195, referred to inheritance and survivorship as two modes of devolution. In In the matter of the Hindu Women's Right to Property Act of 1937, A. I. R. (28) 1941 F. c. 72, Sir Maurice Gwyer C. J. observed:

'It is equally important to remember that neither in their ordinary grammatical significance not by long continued usage in a technical sense, have the words 'devolution' and 'succession' acquired a connotation that would preclude their application to describe the operation o! the rule of survivorship,'

The word 'devolution', therefore, has been used tee connote the accession of a right. I am therefore inclined to hold that the interest of the tenant in the holding has devolved on the auction-purchaser during the pendency of the mortgage suit and that Order 22, Rule 10, Civil P. C., would cover a case like the present. To hold otherwise would be to prolong the litigation between the parties and to force one or the other of the parties to start a fresh suit. It should be remembered that it is of the utmost importance that all objections to execution sales should be disposed of as cheaply and as expeditiously as possible. I have, therefore, arrived at the conclusion, agreeing with my learned brother, that this is a case in which the respondents should be brought on the record and their rights adjusted in these proceedings. How these rights are to be worked out has been indicated in the order proposed by my learned) brother.

26. Accordingly, Miscellaneous Appeals Nos. 3, 4, 6, 7 and 9 are allowed subject to the directions given in the judgment of my learnedbrother. Miscellaneous Appeals 5 and 8 are dismissed.

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