P.N. Mookerjee, J.
1. This appeal is directed against a concurrent decree in a suit primarily and in substance, fur declaration of title and, in the alternative, for redemption. The actual prayers in the plaint were for a declaration that the auction purchase of the suit property by defendant No. 1 in Title Execution Case No. 147 of 1943 of the 3rd Court of the Munsif at Howrah was not binding and operative against the plaintiff and as such the same did not affect his title and possession in the suit property, and in the alternative, for redemption of the said property. The prayers in effect meant, as I have already stated, a prayer for declaration of the plaintiff's title to the suit property and, in the alternative, for its redemption. The suit has been decreed on the primary relief granting the plaintiff an unqualified declaration of his title to the suit property. Hence this appeal by the contesting defendant.
2. A mass of events lies behind this litigation which, shorn of unnecessary details, may he stated as follows :
One Bhusan Kumari Dassi was the owner of two holdings Nos. 50 and 56/1 Ananda Prosad Banerjee Lane, Bantra, within the Howrah Municipality. Holding No. 56 comprised an area of about 9 kattahs and holding No. 56/1 measured about 3 Kattahs 15 yds. In or about 1936 Bhusan Kumari sold 3 kattahs out of holding No. 56 to one Sm. Gbritamoyee Dasai and the remaining 6 kattahs of the said holding and the other holding 56/1 which together form the subject matter of the present suit were transferred by her in 1941 to one Tinkorilal Chandra. In or about 1942, Tinkori transferred the suit property to one Umabala from whom the present plaintiff Jitendra acquired it by a registered kohala on 26-4-1945.
In the mean time on 20-8-1941, the Municipal Commissioners of Howrah had brought Title Suit No. 237 of 1941 in the 3rd Court of the Munsif at Howrah against Ghritamoyee alone for recovery of a charge decree in respect of holding No. 56 Ananda Fro sad Banarjee Lane on account of arrears of Municipal rates from 1st quarter of 1933-34 to 2nd quarter of 1941-42. In execution of the decree obtained in the suit, holding No. 56 was put up to sale on 17-5-1944 when it was auction purchased by the present defendant No. 1 Upendra Nath Bez who is the appellant in this appeal. The sale was confirmed on 30-6-1944 and the auction purchaser Upendra obtained delivery of possession of that portion of holding No. 56, namely, 3 kattahs, which was in the possession of the judgment-debtor Ghritamoyee.
Later on, disputes arose between the plaintiff Jitendra and the auction purchaser defendant No. 1 Upendra over their respective rights in regard to the present suit property which eventually led to the institution of this suit.
3. The facts, as stated above, have been found by the two courts below and they are not open to challenge in this second appeal. Mr. Das Gupta who appears in support of this appeal, however, contends that, even on those facts, the courts below were wrong in giving the plaintiff a declaration of title to the suit property and should have, in any event, made it subject to his redeeming the charge decree (in execution whereof the appellant made his purchase) by proportionate payment. Mr. Das Gupta has further contended that the present suit was barred by Section 538 of the Calcutta Municipal Act which applies to Howrah and also by the proviso to Section 42 of the Specific Relief Act.
4. As to the second contention based on Section 538 of the Calcutta Municipal Act, it is enough to say that in the present suit the Municipality which has been impleaded only as a pro forma defendant is not, strictly speaking, a necessary party and no relief is available and none has actually been claimed or sought--against it. It is clear also that by his auction purchase the defendant appellant acquired title to at least Ghritamoyee's portion of holding No. 56 and he can thus have no possible claim against the Municipality by way of refund of the purchase money or otherwise. The Municipality, therefore, can in no way be affected by the result of the present litigation. Clearly, then there is no question of any notice under Section 538 of the Calcutta Municipal Act and the suit cannot be held to be barred under that section. The appellant's contention, based on Section 538 of the Calcutta Municipal Act, is, accordingly over-ruled.
5. There is also, in my opinion, no sufficient force in the appellant's contention that the suit is barred under me proviso to Section 42 of the Specific Relief Act in the face of the Bench decision of this Court to which I shall presently refer. On the question of possession the finding of both the courts below is in the plaintiffs favour. By reason of the appellant's auction purchase at the court sale, to which reference has been made above, a cloud has been cast on the plaintifi's title and in view of the Bench decision in the case Mohesh Chandra Missra v. Sm. Nistarini Dassya, 27 Cal WN 449 at p. 456 . (AIR 1923 Cal 382 at p. 384) (A), it is open to him to bring a suit merely for declaration that his title to the suit property has not been affected by that sale. That is the form of the present suit, and sitting singly, I am bound to hold, in view of the authority quoted, that it is outside the mischief oF the proviso to Section 42 of the Specific Relief Act. I may add further that the above view of the law appears to be well supported by Illustration (g) to the section itself. See also in this connection Banerjee's Specific Relief, Second Edition, pp. 513-4, and Ramanuja v. Revanayaka, ILR 8 Mad 361 at p. 364 (B) and the Fatna Case, reported in Sahdeo Lal Bhagat v. Kesho Mohan, 20 Cal WN 1274 : (AIR 1919 Fat 361) (C). The appellant's third contention must, accordingly, fail and it is overruled.
6. I come now to the merits of the case. From the statements of relevant facts, given above, it is quite clear that the auction sale at which the appellant made his purchase had nothing to do with the holding No. 56/1. The Municipality's suit was in respect of the other holding No. 56 and nothing done in that suit or in pursuance of the decree passed therein can in any way affect the title to holding No. 56/1. Undisputeclly also, the plaintiff has become the owner of the said holding by virtue of his purchase from Umabula. The decision of the two courts below declaring the plaintiff's absolute title to the said holding No. 56/1 must, therefore, stand.
7. In the facts of this case, the point that really requires consideration is what in law was the effect of the charge sale on the plaintiff's title to the disputed portion of holding No. 56. I do not accept Mr. Das Gupta's extreme contention that the purchaser in execution of a decree for enforcement of a statutory charge has higher rights than the purchaser at a mortgage sale and that the charge holder in such a case may safely leave out any of the owners of the equity of redemption and yet confer an absolute and unrestricted title on the auction purchaser. I find no support for this extreme argument either from principles or from authorities and I reject it without the least hesitation. The point, however, still remains as to whether the plaintiff (who represents the owner or holder of the equity of redemption, so left out) is, in his turn, entitled to an unconditional declaration of title in regard to the disputed portion of holding No, 56, in other words, the true extent of the respective rights of the contending parties in regard to the said disputed property still remains to be closely examined. On this aspect of the matter, judicial opinion is not uniform even in this Court. But, in my opinion, the true legal position seems to be that by his purchase at the charge sale the defendant appellant acquired the rights of the charge-holder Municipality and the rights of the holder of the equity of redemption namely, Sm. Ghritamoyee, who was impleaded in the suit. Those lights would not, in any event, affect the plaintiff's title and possession of the charged property beyond obliging him to redeem the charge proportionately. Quite recently this matter was elaborately considered by a Bench of the Patna High Court (vide the case of Ganga Prosad Singh v. Mt. Ganeshi Kuer, AIR 1944 Pat 119 (D) ) where after an exhaustive review of all the relevant authorities it was laid down by the learned Judges that the only remedy of the auction purchaser at the mortgage sale--and a charge sale purchaser has certainly no higher rights--lay in enforcing the mortgage lien against the holder of the equity of redemption, left out in the mortgage suit, in a properly constituted proceeding in accordance with law. Speaking for myself, I am inclined to agree with this Patna decision but, as in some Bench decisions of this Court, (vide Jugdeo Singh v. Habibullan Khan 6 Cal LJ 612 (E), Kalu Sherip v. Abhoy Charan. 25 Cal WN 253 : (AIR 1921 Cal 157) (F); Bhagaban Chandra v. Tarak Chandra : AIR1927Cal259 , Bhodai Sheikh v. Lakshminarayan Dutta ILR 55 Cal 602, same case : AIR1928Cal116 , and Nihar Mala Debi v. Saroj Bandhu : AIR1933Cal728 a somewhat different view was taken in that a suit for possession at the instance of either party was allowed to he treated as a suit for enforcement of the mortgage or converted into a suit for redemption as the occasion required and redemption was allowed or enforced so as to adjust the rights of the parties in the very proceeding, pending before the court, without driving them to a separate suit and as I am unable to distinguish them on principle, it is not open to me sitting singly, to give effect to the Patna view in deciding the present appeal. Admittedly, on the date of the present suit the charge in question had not become time barred. I cannot, therefore, bring to the plaintiff's aid the line of cases represented by Sm. Dhapubai Mini v. Chandra Nath : AIR1938Cal524 . and the cases of Habibullah v. Jugdeo Singh, 6 Cal LJ 609 (K), and Krishtopada Roy v. Chaitanya Charan Mondal, ILR 49 Cal 1048 : (AIR 1923 Cal 274; (L), also really fall within this category and grant the plaintiff a declaration of title to the disputed portion of holding No. 56 without directing him to redeem proportionately the charge for arrears of municipal rates which formed the subject-mutter of the Municipality's Title Suit No. 237 of 1941. That charge was in respect of the entire holding No, 56 which roughly comprised an area of 9 Kattas. Of this holding, the plaintiff, as it appears Irom the statement of facts, made in this judgment, claims title only to about 6 kattas. He is, therefore, liable to contribute two thirds of the redemption money of the entire charge. The decree in the charge suit was roughly Rs. 150/- including costs. Two thirds of that amount would be Rs. 100/-. As the defendant made his purchase in execution of the charge decree which was paid off out of the purchase money at the said auction sale several years back, the defendant appellant would in equity be entitled to some amount as compensation. This I assess at Rs. 25/- in the circumstances of the present case. The redemption money payable by the plaintiff respondent is thus calculated at Rs. 100/- plus Rs. 25/- i.e., Rs. 125/- in all. It must be paid within a month from the arrival of the record in the trial court. In default, the defendant appellant will be entitled to apply to the trial court for a final decree for sale in Form No. 7-E of Appendix D of the Code of Civil Procedure and the court will deal with that application in accordance with law in the light of this judgment. The declaration of the plaintiff's title to the disputed portion of holding No. 56, will, accordingly be accompanied by the above condition of redemption and the decrees of the two courts below will be modified accordingly.
8. Subject to the above modification, this appeal is dismissed, and the decision of the two courts below is affirmed.
9. In the result the plaintiff's suit is decreed as follows : The plaintiff-respondent's full and absolute title to holding No. 56/1 Ananda PrasadBanarjee Lane is declared or in other words he getsan unconditional declaration of his title in regardto the said holding: but, in regard to the disputedportion of holding No. 56, the declaration of histitle is made subject to the condition of redemption (including the default clause, as noted above).To put it in another way, it is declared in terms ofthe actual prayers, made in the plaint, that in respect of holding No. 56/1, Ananda Prasad BanarjeeLane, the auction purchase of defendant No. 1 inTitle Execution Case No. 147 of 1943 of the 3rdCourt of the Munsif at Howrah has no effect and isin no way binding and operative against the plaintiff and has not, in the least, affected the latter'stitle and possession in the said holding, and, in respect of the other part of the suit property, namelythe disputed portion of holding No. 56, the plaintiff is given a decree for redemption, as prayed forin his alternative prayer on the terms, indicatedabove. There will be no order for costs in thisappeal.