Hill and Brett, JJ.
1. This is an appeal against the order of the Subordinate Judge of Hooghly, dated thh 22nd April, 1901 allowing an objection raised by the respondent in certain execution proceedings to which he had been made a party by the appellant. The order was to the effect that no execution could proceed against him.
2. The appellant, Akhoy Kumar Soor, was the mortgagee of one Hira Lal Sarkar who, by a bond dated the 25th November,' 1886, mortgaged with other property his one-third share in the disputed taluk Rampore. The present respondent, the Maharaja of Burdwan, was the owner of the whole of the superior patni tenure. In 1891 the appellant, Akhoy Kumar Soor, sued on his mortgage and obtained a decree against his mortgagor, Hira Lal Sarkar, on the 11th January, 1892, which, on the 26th May, 1892, was made absolute.
3. Meanwhile, the mortgagor and his co-sharers had defaulted in paying their darpatni rent for the years 1889 to 1892; and, in consequence, the Maharaja, the patnidar, sued them and obtained a decree on the 30th March, 1893; on the 27th July, 18961, the Maharaja applied for execution of his decree against the property of the debtors and the darpatni was put up for sale and purchased by the Maharaja on the 11th December, 1893. The sale was confirmed on the 9th June, 1894, and a sale certificate delivered to the purchaser on the 18th March, 1895.
4. After having obtained the decree on his mortgage against Hira Lal Sarkar, the appellant, Akhoy Kumar Soor, took out execution against various properties of his mortgagor other than the darpatni tenure and realized some portion of his debt. For recovery of the balance he applied, on the 29th January, 1901, for execution by sale of the mortgagor's interest in the darpatni tenure; and, as the Maharaja of Burdwan had in the-meanwhile sold up and purchased the darpatni, he applied that he should be made a party to the execution proceedings. Notice of the application was served on the Maharaja on the 2nd February, 1901; and the suggestion which has been made in his behalf is that this was the first notice he had of the appellant's mortgage. On the 13th March, 1901, application was made on behalf of the Maharaja under Section 167 of the Bengal Tenancy Act to the Collector of Hooghly for the service on the appellant pf a notice annulling his mortgage as being an encumbrance on the darpatni tenure which, under his sale and purchase, he had a right to avoid; and, on the 23rd March, 1901, the Maharaja put in an objection tinder Section 244, Civil Procedure Code, in the execution proceedings taken by the present appellant. In that objection he contended that the proceedings could not be taken out against him for sale of the mortgagor's 5 annas' odd share in the darpatni as he was not the representative of the debtor; that he, the Maharaja, had purchased the darpatni tenure at a sale for arrears of its rent with the right to annul all encumbrances thereon; that he had duly served the mortgagor, the appellant, with a notice under Section 167 of the Bengal Tenancy Act annulling his encumbrance; that appellant's mortgage was not a 'protected interest' within the meaning of the Bengal Tenancy Act; and that, accordingly, the prayer for execution by sale of the share in the darpatni might be rejected.
5. This objection has been allowed by the Subordinate Judge, and against his order this appeal is preferred.
6. In support of the appeal our attention has been drawn to the proceedings taken in execution of his decree for rent by the Maharaja, the present respondent. In the application for execution it is prayed that the decretal amount be realized by attachment and sale of the property in arrears mentioned in a separate sheet of the paper (the schedule), and in the schedule the property is described as 'lot Rampore, bearing an annual jama of Rs. 201, situate under chowki Jahanabad, division Khanakool, and recorded in the name of the darpatnidar, Kailash Chundra Koer, in the sherista of the decree-holder, Bahadur, being the property in arrear. One item, value Rs. 500 The sale proclamation was an incorrect form under Clause 2 (b) of Section 163 of the Bengal Tenancy Act, and declared that 'the said jote with right of occupancy shall be sold by auction with power to annul all encumbrances.' In the sale certificate dated the 18th March, 1895, the property is described as 'the right, title and interest of the judgment-debtor in the properties arrears mentioned in the schedule,' although, in the schedule, after the description of the property, the addition occurs, 'the said lot in arrears.' And in the order of the 9th June 1894, confining the sale, the property sold is described as the right, title and interest of the judgment-debtors in the lot Rampore as described in the schedule attached to the sale certificate.
7. On these materials it is contended that the sale was, in fact, under the Code of Civil Procedure and not under the Tenancy Act; that the property sold was the right, title and interest of the debtors in the darpatni and not the tenure itself; and that, under the sale, the purchasers acquired no right to annul encumbrances. It is further suggested that the mortgage of the appellant was a 'protected interest' within the meaning of Section 160, Clause (g) of the Bengal Tenancy Act.
8. It is contended, in the second place, that even if the mortgage did not amount to a protected interest, but was an encumbrance only within the meaning of Section 167 of the Bengal Tenancy Act, then the notice served was not a legal notice, as it was signed by Mr. Deb, a Deputy Collector, who is not proved to have been vested under the Act by Government with power to issue a notice under Section 167. The case of Mohabut Singh v. Umahil Fatima (1900) I. L. R. 28 Calc. 66. is relied on in support of this contention and farther it is urged that, even if the notice were otherwise valid in law, the application of the Maharaja for the service of the notice having been made on the 13th March, 1901, which was more than seven years from the date of the sale, i.e., the 11th December 1893, the application was barred by limitation as not being made within one year from the date of the sale, or the date on which the Maharaja had first notice of the encumbrance.
9. And, thirdly, it has been contended that after the applicant had sued on his mortgage and had obtained a decree, the mortgage lien had been extinguished and had become a judgment debt, which could not be annulled under the provisions of Section 167 of the Tenancy Act. At most, the Maharaja, by virtue of Section 65 of the Act, could claim that he had a first charge on the tenure for the rent.
10. It is not, in our opinion, necessary to go at length into the first and third contentions, as we consider that the Appeal must succeed on the ground of Limitation.
11. There can be little doubt that what the Maharaja intended to bring to sale in satisfaction of his decree for the rent of the darpatni was the tenure itself, and that was in fact what he prayed for in his application. By carelessness or oversight a wrong form was used for the proclamation of sale: that is to say, a form suitable for the sale of an occupancy holding with power to annul all encumbrances. The result was that in the sale certificate and order confirming the sale, the property was wrongly described as the right, title and interest of the debtor in the darpatni tenure although, in the schedule attached to each, it is specified as 'the lot,' or property itself 'in arrears.' The case is not on all fours with that of Dwarkanath and Ors. v. Aloke Chunder Seal and Ors. (1883) I. L. R. 9 Calc. 641., on which reliance is placed for the appellant, but seems to us to fall rather within the principle laid down by the Privy Council in the case of Jotendro Mohun Tagore v. Jogul Kishore (1881) I. L. R. 7 Calc. 357., as explained and applied in this Court in the case of Nityai Behary Shaha Paramanick v. Sari Govinda Saha (1899) I. L. R. 26 Calc. 677, 685. We consider that the terms 'right, title and interest of the debtors,' as used in the sale certificate and order, must be construed with reference to the circumstances under which the suit was brought and the true meaning of the decree under which the sale took place, as well as the proceedings leading up to the sale. In this instance, the proceedings were taken under the provisions of the Bengal Tenancy Act, and application made for the simultaneous issue of the order of attachment and proclamation as provided in Section 163, and we are of opinion that, in this case what was intended to be sold was the entire tenure and not merely the right, title and interest of the defaulters therein.
12. We may say that we are quite unable to accept the suggestion by the learned pleader for the appellant that the mortgage amounted to a 'protected interest' within the meaning of Section 160, Clause (g) of the Tenancy Act, or that, having regard to the provisions of Sections 164 and 165, it was necessary for the Maharaja to put up the tenure for sale first, subject to registered and notified encumbrances, and afterwards with power to avoid all encumbrances, It is impossible, in our opinion, so to read the provisions of Sections 3 and 4 of Regulation VIII of 1819 as to hold that, by them, the landlord expressly gives the darpatnidar permission to create a mortgage so as to bring the mortgage within the provisions of Section 160, Clause (g) of the Bengal Tenancy Act, This mortgage, too, was admittedly not a registered and notified encumbrance within the meaning of Section 161, Clause (b) of the Act. On the first point therefore the appellant fails.
13. On the third 'point, we are inclined to think that he would be entitled to succeed. Lifter, as in this case, the mortgagee had enforced his lien and obtained his decree, it seems difficult to hold that the decree would remain as an encumbrance on the tenure which could be avoided under the provisions of s. 167 of the Tenancy Act.
14. On the second point, however, we think the appellant must succeed. There is, in our opinion, not much substance in the objection raised on the ground that Mr. Deb, who signed the notice, was a Deputy Collector and not the Collector. The application was undoubtedly made to the Collector, and it seems not impossible that, if Mr. Deb had no power under the Act to issue a notice under Section 167, he may have signed for the Collector.
15. The point which to us seems to be of most importance, and on which the decision of the appeal turns is, however, whether, when the application under Section 167 of the Bengal Tenancy Act was made on behalf of the Maharaja to the Collector on the 13th March, 1901, that application was barred under the provisions of the section by reason of the fact that it was not made within one (sic) from the date of the sale or the date on which he first had notice of the encumbrance.
16. The view taken by the Sub-Judge on this point was 'that the objector's position as a minor brings his application, by virtue of the provisions of Section 7 of the Limitation Act, beyond the special limitation of one year prescribed by Section 167 of the Bengal Tenancy Act,' and ha relied on the case of Maharaj-Kumar Guneshwar Sing v. Jagadhatri Persad Narain Singh (1898) 3 C. W. N. 24. in Support of that opinion. He accordingly held that 'no limitation applied to the Maharaja's application under Section 167 of the Bengal Tenancy Act, and that the notice issued was valid.'
17. On behalf of the Maharaja, it has been contended that the first notice he had of the encumbrance was when he received, on the 2nd February, 1901, notice of the application to take out execution' against the share in the darpatni tenure and to make him a party to the execution proceedings. The only evidence, if it can be regarded as such, which appears on the record to support this allegation is the attested copy of the petition made to the Collector of Hooghly for the issue of the notice under Section 167 of the Bengal Tenancy Act. This petition appears to have been put in by one Nil Madhub Majoomdar on behalf of the manager and guardian of the Maharaja. It was not verified and may be nothing but a mere hearsay statement. On the other side, there is the deposition of the appellant Akhoy Kumar Soor, taken before the Subordinate Judge, in which he says that, in May, 1894, he was cited to give evidence on behalf of the Maharaja in a proceeding taken on a petition filed' by Hira Lal Sarkar praying that the sale of the darpatni tenure in satisfaction of the Maharaja's decree for rent might be set aside. In his evidence, he stated that one-third of Rampore (the darpatni tenure) had been mortgaged to him, and he adds that it was on being interrogated by the pleaders for the Raj estate and for the judgment-debtor that he spoke about the aforesaid mortgage. And in corroboration of his statement, his deposition, taken on the 5th May, 1894, has been put in and proved.
18. The learned Advocate-General has contended that the statements made in that deposition in diverso in tuitu cannot be taken as amounting to notice of the mortgage. We are unable to agree with him in that view or to hold that in this case anything of the nature of a formal notice of the mortgage was necessary. We are of opinion that, having regard to the provisions of Section 3 of the Transfer of Property Act, the Maharaja, the objector, had notice of the mortgage in the year 1894, which is certainly more than one year before the date on which the application under Section 167 of the Bengal Tenancy Act was made on his behalf to the Collector; and apart from this, as already intimated, the Maharaja had adduced no evidence to prove at what time he first came to know of the mortgage.