1. The plaint properties were sold to 7th defendant in execution of a decree for rent due upon them, and the sole question for decision is whether the purchase by 7th defendant is subject to plaintiff's mortgage on the properties or not. The two lower courts have taken opposite views, the District Munsif holding on the strength of the ruling in Tariniprosad Roy v. Narayan Kumari Debi I.L.R. (1906) Cal. 301 that a sale in execution of a decree for rent did not affect a prior mortgage, while the Subordinate Judge following the opinion of the Calcutta High Court in Royzuddi Sheik v. Kali Nath Mookerjee I.L.R. (1889) Cal. 985 that the statutory charge upon the land for arrears of rent was not a charge with in the meaning of Section 100 of the Transfer of Property Act, held that the sale transferred the property free of encumbrance.
2. Under Section 5 of the Madras Estates Land Act a first charge is created upon the land for rent, but the provision in Section 65 of they Bengal Tenancy Act that the land can be sold in execution of a decree for rent finds no place in the Madras Act, under which a landlord may sue for his rent or distrain moveable property (Section 77) or sell the land through the Collector (Section 111). The question is whether having obtained a money decree, the property can be brought to sate in execution with the same result as would follow from a sale effected by the Collector. If the, charge upon the land is a charge within the meaning of Section 100, Transfer of Property Act, the provisions of Order XXXIV Rule 14 of the Code of Civil Procedure clearly forbid the sale of the property except by instituting a suit for, sale in enforcement of the charge. Under Section 100, Transfer of Property Act, ' Where immoveable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge upon the property and all the provisions hereinbefore contained as to a mortgagor shall so far as may be, apply to the owner of such property.' If we apply this section, the owner of the property i. e., the tenant whose holding is security for the rent, is treated as being in the position of a mortgagor, and has the rights of a mortgagor under Sections 60 and 61, to redeem the charge; but under the Estates Land Act a tenant cannot get rid of the charge upon his holding by paying the rent, for the charge continues as security for rent to be paid hereafter. It may also be noted that where rent is payable in kind, the charge for arrears of rent cannot come within the definition in Section 100 which refers only to payment of money, and it would be most anomalous that a Gharge created by statute, should be a charge within the meaning of Section 100 in some cases, but not so in others. The Estates Land Act treats the charge as being of the same nature in all cases, and creates no distinction between the charge where rent is payable in kind and the charge where rent is payable in money. Section 73 of the Transfer of Property Act would also seem to indicate that a charge for rent is not of the nature contemplated in Section 100. I would therefore accept the view of the Calcutta High Court expressed in Fotick Chunder Dey Sircar v. Foley I.L.R. (1887) Cal 492 and in Royzuddi Sheik v. Kali Nath Mukherjee I.L.R. (1906) Cal. 985 that a charge for rent is not within the meaning of Section 100 of the Transfer of Property Act. In this view Order XXXIV, Rule 14 is inapplicable to the present case.
3. There is, however, another aspect of the case which has to be considered. Under the decree for rent the property can be brought to sale, but if the decree were merely for money due on a debt, the sale would not have the effect of passing the property free of encumbrance, and it is difficult see how the fact that the debt is a debt for tent can affect the case when the decree is passed by a civil court, In the present case, however, we are not concerned with a civil court's decree because the rent decree was obtained in a revenue court, and under Section 132 of the Estates Land Act the provisions of Chapter VI relating to sales by a Collector for arrears of rent are made applicable to the execution of a decree of a revenue court for arrears of rent, A sale by a Collector under Chapter VI passes the property free of all encumbrances except those specified in Section 125, and consequently by virtue of Section 132 a sale in execution must do the same, This view is also supported by the fact that under Section 133 the Collector has certain powers given to him both in executing a decree for arrears by sale and in holding a sale for default under Chapter VI, no distinction being drawn between the two sales. Although Section 65 of the Bengal Tenancy Act is not specifically re-enacted in the Madras Act, Section 132 of the latter leads to the same result, and I must hold that a sale in execution of a decree for rent -in a revenue court passes the property to the purchaser free of all encumbrances except those specified in Section 125.
4. This second appeal is accordingly dismissed with costs.
Kumaraswami Sastri, J.
5. The plaintiff is the appellant. Defendants 1 and 2 filed a suit in the revenue court against the 3rd defendant for arrears of rent, got a money-decree and in execution sold the holding. The plaintiff who claimed to be a mortgagee under a registered deed of mortgage, dated 6th May 1910, sued for a declaration that the sale in execution was subject to his mortgage. The District Munsif was of opinion that inasmuch as the sale was in execution of a simple money-decree, the decree-holders must be presumed to have given up their lien on the holding conferred by Section 5 of the Estates Land Act and passed a decree in favour of the plaintiff On appeal, the Subordinate Judge reversed the decree and held that the charge was not affected by the form of the decree.
6. It is argued for the appellant that the charge created by Section 5 of the Estates Land Act is a charge within the meaning of Section 100 of the Transfer of Property Act so as to attract to it the provisions of Order XXXIV of the Code of Civil Procedure and that consequently the sale of the property charged in execution of a simple money-decree wilL not bind a- mortgagee or prevent him from redeeming. It is also argued on the strength of the observations of Petheram, C.J., in Tariniprosad Roy v. Narayan Kumari Debi I.L.R (1889) Cal.301 that the sale in execution of a simple money decree for rent would have no higher effect than any other sale in execution of a money-decree.
7. As regards the first contentjon I do not think that rent due by a tenant to his landlord which may be payable either in kind or in money can be said to be a charge within the meaning of Section 100 of the Transfer of Property Act which expressly refers to the security being only for the payment of money. It is extremely unlikely that the legislature intended that landlords who receive their rent in kind should be in a different footing from those who receive the rent in money and that while the former are untrammelled by the provisions of Order XXXIV of the Code of Civil Procedure the latter are bound by them.
8. In Srimati Moharanee Dasya v. Harendra Lal Roy 1 C.W.N. 458 it was pointed out that there was no strict analogy between a charge for rent and a mortgage. In Fotick Ghunder Day Sircar v. Foley I.L.R. (1887) Cal. 492 it was held that rent due by a tenant which by virtue of,S. 65 of the Bengal Tenancy Act was a charge on the holding was not a charge within the meaning of Section 100 of the Transfer of Property Act. And a similat view was taken by Mookerjee, J., in Royzuddi Sheik v. Kali Nath Mookerjee I.L.R (1906) Cal. 985 In Gopinatha Mahapatra v. Kashinath Beg (1909) 9 Cal. L.J. 234 the purchaser in execution of a rent decree was held to have priority over a purchaser in execution of a mortgage decree : and reference was made to Section 73 of the Transfer of Property Act which enacts that where property is sold for arrears of rent the mortgagee is entitled to enforce his mortgage against the surplus sale proceeds.
9. Reliance has been placed by the appellant's vakil on the observations in Narayana Aiyar v. Venkatramana Aiyar I.L.R. (1902) Mad. 220 to the effect that in construing the words 'mortgage' and 'charge' for the purpose of the Limitation Act, the definition of the Transfer of Property Act should be applied in the absence of any definition in the Limitation Act. These observations do not lay down an imperative rule of construction, but only indicate that in the absence of any repugnancy, Courts will adopt the definition in a substantive enactment, when they have to construe other acts where the same words are used. The fact that rent is not necessarily payable in money renders the definition of a charge in Section 100 of the Transfer of Property Act inapplicable. I think the view taken by the Calcutta High Court is sound and see no reason to differ from the decisions above referred to.
10. On the second question I am of opinion that a sale in execution of a money-decree for rent in a suit under Section 77 of the Estates Land Act passes title free from all encumbrances except when the encumbrance falls within Section 125 of the Act. Section 5 declares that the rent of ryoti land together with any interest which may be due in respect thereof shall be a first charge on the holding. Under the Act the landlord can recover the rent due in these ways; (i) by distraint and sale of moveable property (2) by a sale through the Collector and (6) by a suit under Section 77 of the Act in a revenue court and sale in execution of the decree passed therein. So far as distraint and sale by the Collector are concerned there can be little doubt that the sale would confer a title on the purchaser free from all encrumbrances except such as are contemplated in Section 125 and there seems to be no reason why the intervention of a decree for rent should make any difference if the provisions of Order XXXIV of the Code of Civil Procedure do not apply. The following observations of Mr. Ameer Ali in his commentaries on Section 65 of the Bengal Tenancy Act when dealing with Tarani Prosad Roy v. Narayan Kumari Debi I.L.R. (1889) Cal. 801 are in point:-' There is no warrant in the provisions of the Act for holding that a difference in the form of the action would alter the rights of the landlord relating to the enforcement of his decree for arrears of rent. If the suit is for rent and the decree is for rent, the absence of a declaration in the ordering part of the decree that the decretal amount is a charge on the tenure or holding would not, it is submitted, after the character of the decree the effect of which under the law is to make the rent a first charge on the tenure or holding in respect of which the arrears are claimed.'
11. The observations of Petheram, C.J., in Tarini Prosad Boy v. Narayana Kumari Debi I.L.R. (1889) Cal. 801 are dissented from in Surbo Lal v. J M, Wilson I.L.R. (1905) Cal. 680 and in Royzuddi Sheik v. Kali Nath Mookerjee I.L.R. (1903) Cal. 985 Mookerjee, J., was of opinion that the consequence which follows from the provision that rent is a first charge upon an under-tenure is that a sale held in execution of a decree for arrears of rent produces the effect described in Chapter XIV of the Bengal Tenancy Act which refers to sales for arrears under a decree and which provides for a title free from all except certain specified encumbrances, to the purchaser.
12. It has been argued for the appellant that as there is no section in the Estates Land Act similar to Section 65 of the Bengal Tenancy Act the decisions above referred to, have no application. Section 65 provides that where a tenant is a permanent tenure-holder or a raiyat holding at fixed rates or an occupancy raiyat he shall not be liable to ejectment for arrears of rent, but his tenure or holding shall be liable to sale in execution of a decree for the rent thereof, and the rent shall be a first charge thereon, As observed by the Privy Council in Forbes v. Maharaj Bahadur Singh I.L.R. (1914) Cal. 926 Section 65 is not a happily worded section and the clause refers to 'rent being a first charge' and the words' seem from their collocation to have been inserted as an after-thought without sufficient consideration of their applicability to the rest of the provisions contained in the section.' The Estates Land. Act contains provisions in different sections which, in effect, reproduce all the provisions of Section 65 of the Bengal Tenancy Act. Section 5 of the Estates Land Act provides that rent due by a ryot shall be a first charge. Section 6 gives a ryot, rights of permanent occupancy. Section 77 gives the landlord the right to recover arrears of rent in a revenue court and Section 13(sic) provides that the provisions of Chapter VI shall be applicable so far as may be to the execution by a revenue court of any decree for arrears of rent. It will thus be seen that the absence of any separate section like Section 65 of the Bengal Tenancy Act makes really no difference in the scheme of the Estates Land Act and does not render the reasoning adopted by the learned Judges of the Calcutta High Court inapplicable.
13. Sections 111 to 131 relate to sales by the Collector on the application of the landlord to whom rent is due, and Section 125 enacts that the purchaser will only take the holding subject to ' any right or inte est which the ryot has created therein with the landlord's permission in writing registered and subject to any encumbrances created before the passing of the Act,' It seems to me that the combined effect of Sections 125 and 132. is to give the same rights to a purchaser in execution of a decree for rent there being nothing in the Act repugnant to such a construction.
14. I am therefore of opinion that the purchaser in execution of a decree for rent gets the properties free from encumbrances except such as are specially reserved by the provisions of the Estates Land Act. The Second Appeal fails and is dismissed with costs.