1. This appeal is one by the decree-holder and raises a short question under, Section 168A, Ben. Ten. Act. The appellant has lost in both the Courts below.
2. The material facts are the following: The appellant obtained a rent decree against the respondents on 11th November 1941 in respect of an occupancy holding and for the years 1344 to 1347 B. Section Thereafter in 1943, he obtained another decree this time for the years 1348 to 1349 B.S. He chose to put into execution the second decree first which he did by sent Execution Case No. 902 of 1944 and purchased the holding himself on 16th August 1944. Thereupon, in November 1944 he put the first decree into execution and sought to proceed against other properties of the judgment-debtors when he was met with a plea under Section 168A, Ben. Ten. Act.
3. Both the Courts below have given effect to the plea though on slightly different reasons. The trial Court appears to think that when a landlord obtains two successive decrees for rent and puts the later one into execution, purchasing the holding himself, the liability for the previous rent is automatically extinguished. The lower appellate Court proceeds along a different line. It seems to think that although it is not expressly so stated in Clause (b) of Section 168A, yet the intention of the Legislature is that in circumstances like the present, the tenant would no longer be liable to have other properties belonging to him sold in auction.
4. It is contended in the present appeal that whether the matter be regarded from the point of view of general principle or considered by reference to the terms of Section 168A, the view taken by the Courts below must be held to be incorrect. In my opinion, this contention is correct.
5. The trial Court relies upon two decided cases, the case in Midnapur Zamindary Corporation Ltd. v. Mrinal Kanti : AIR1938Cal681 and the case in Nripendra Nath v. Kuldip Misra ('38) 25 A.I.R. 1938 Pat. 545 The first of these cases is relied upon by the lower appellate Court as well. On a reference to the decision, however, it will be found that all that was there held is that if a landlord who holds both a rent decree and a money decree, puts the latter into execution and purchases the right, title and interest of the judgment-debtor in the holding he takes the holding as subject to the rent charge and becomes himself liable to pay off the same. In the result the rent charge is extinguished. That principle can have no application where the first sale is a rent sale and what passes is not the right, title and interest of the tenant but the holding itself. The other case relied upon by the trial Court is a decision of the Patna High Court and there again all that was held was that an auction purchaser was liable for arrears of rent for the period between the date of the decree and the date of the sale. The decision proceeds on the principle that the auction purchaser took the property as subject to the further charges which had accrued since the date of the decree. It is quite clear that the principle laid down in that decision has no bearing in the present case. On the other hand, reference may be made to a decision of the Patna High Court itself in Kesho Prosad v. Mt. Pran Jyoti 8 A.I.R. 1921 Pat. 184 where it was held that if a landlord obtains two rent decrees and sells the holding in execution of one of them without notifying the other and purchases it himself, he is not debarred from executing the other decree against other properties of the judgment-debtor. The same view was taken in another case of the same Court namely Md. Jowad Hossain v. Kumar Gopal Narain Singh 8 A.I.R. 1921 Pat. 479. The law as laid down in this decision may seem apparently inconsistent with what was stated in cases like Mathura Mohan Saha v. Nabin Chandra Dutt 4 A.I.R. 1917 Cal. 286. But all that decisions of that type mean is that the auction purchaser takes the property without any liability for previous arrears and not that the judgment-debtor himself is freed. There is thus nothing in general principle that on the sale of a holding in execution of a rent decree, the liability of the tenant under a previous rent decree disappears.
6. Coming now to Section 168A, Bengal Tenancy Act, it is only too clear that Clause (b) of Sub-section (1) has no reference to the rent for any period prior to the date of the suit. The clause speaks expressly of.
any rent which may have become payable to the decree-holder between the date of the institution of the suit and the date of the confirmation of the sale.
It does not go further backward. There does not seem to me to be anything in the language or intention of Section 168A from which it can be held that the Legislature intended that on the rent sale of a holding, the pre-suit liabilities for rent would all be extinguished. In my view the Courts below have not taken a right view of the question. The appellant, in the facts of the present case, was entitled to execute his earlier rent decree.
7. Mr. Banerjee contended that even so, the appellant would be entitled to proceed against the other properties of the tenants only if he could establish that the tenancy had expired before the present application for execution had been made. The point in this submission was that there ought to be a remand for a decision as to whether there had in fact been a merger of the tenancy in the superior right of the landlord. In view of the special provisions contained in Section 22, Bengal Tenancy Act, I am of opinion that the question of merger cannot be a matter for further enquiry in the present case. The appellant is the sole decree-holder and it is not disputed that the respondents constitute the total body of tenants against whom the rent decree was executed. There was thus a merger in law and no investigation as to merger in fact is necessary.
8. In the result the appeal is allowed. The judgments and the orders of the Courts below are set aside and it is directed that execution will now proceed. In the circumstances of this case I make no order as to costs.