S.K. Ghose, J.
1. The plaintiff instituted the suit for the recovery of arrears of rent of a permanent tenure for the period 1338 Falgoon to 1339 Magh. It appears that the plaintiff had previously obtained a decree for the rents of another tenure and in execution of that decree he auction-purchased the tenure in suit on 25th January 1933. The present suit has been brought against the same judgment-debtor in respect of a period anterior to the auction-purchase. The suit is contested by defendant 6 and his defence is that the sale of 25th January 1933 was in effect a money sale, that the landlord auction-purchased only the right, title, and interest of the judgment-debtor and that the latter is no longer liable for the rent of the anterior period. This defence has been accepted by both the Courts below. Hence this second appeal by the plaintiff. The learned advocate for the plaintiff-appellant does not dispute that his client purchased the tenure at a money sale, but he contends that he is entitled to a money decree against the judgment-debtor tenant for the arrears of the anterior period. The Courts below have taken the view that this liability for the arrears passed with the sale and attached to the landlord purchaser. The question is whether this view is correct. It is important to remember that Section 65, Ben. Ten. Act, gives to the landlord a special remedy by putting him in the position of a first mortgagee so to speak; but his other remedy against the tenant personally for the debt due to him remains, and he has the right to avail himself of either of these remedies: Trinprosad Roy v. Narayan Kumari Debi (1890) 17 Cal 301. That however was not the case of a landlord auction purchaser at a money sale. The right given by 8. 65 is dependent on the existence of the relationship of landlord and tenant at the time when the remedy provided by law is sought to be enforced: A.H. Forbes v. Maharaj Bahadur Singh (1914) 1 AIR PC 111. Similarly a decree obtained by a landlord against the tenants who had ceased to be tenants cannot be called a decree for rent: Dwarkanath Chakravarti v. Atul Chandra (1919) 6 AIR Cal 381. This point indeed presents no difficulty in the present case. The question is not what would happen at the execution stage but whether by operation of law the right of the landlord auction purchaser to the arrears of rent for the anterior period has been extinguished. The tenant was liable for those arrears. The landlord has now placed himself in the position of that tenant by purchasing his right, title, and interest. Then can the landlord still say that he can claim those arrears from the person whose right, title, and interest he has purchased? In Sailoja Prosad v. Gyani Das (1913) 18 CLJ 29 the land-lord had obtained against the tenant a rent decree in 1904 and a money decree in 1906. In execution of the later decree he attached the tenure and proclaimed at the time of sale that the tenure was subject to the judgment debt under the decree of 1904. The decree- holder having purchased at this sale, it was held that the judgment debt under the rent decree was extinguished.
2. In the present suit under appeal the question has not arisen at an execution stage and there is not yet a decree, but there is a liability which is sought to be made into a decree. So the same principle appears to be applicable. For the appellant stress is laid on the fact that, unlike as in the reported case, the proclamation of sale which resulted in the plaintiff's auction-purchase did not contain any notice that there were rents in arrears for the anterior period. That case is referred to and explained in a judgment of the Patna High Court in Kesho Prosad v. Mt. Paranjota Koer (1921) 8 AIR Pat 184 wherein the importance of the notice in the sale proclamation is stressed. But does the absence of notice always mean that the sale is not subject to the charge? I do not think so. Rent is by operation of law the first charge on a tenure and ordinarily the purchaser would take the tenure subject to that charge: Maharanee v. Harendra (1897) 1 CWN 458. This was also held in the case of a private purchase, Amiya Pal v. Sharba Mangalal (1926) 13 AIR Cal 737, though the charge does not attach until the execution stage is reached: Official Trustee of Bengal v. Purna Chandra Roy : AIR1931Cal202 . Moreover so far as the landlord auction-purchaser is concerned, he does not require any notice that arrears of rent are due. The matter is within his special knowledge and so it has been held that his omission to notify the arrears has the effect of destroying his lien on the property: Giribala Debia v. Mina Kumari (1904) 5 CWN 497. It has also been pointed out that although Section 65 has been enacted for the benefit of the landlord, he may lose the benefit by his own conduct as in Ram Saran v. Mahomed Latif (1893) 3 CWN 62. There the landlord in execution of a money decree purchased an occupancy holding and after settling it with other persons brought it to sale in execution of a decree for past arrears against the original tenant. It was held that the purchaser did not acquire any title because the landlord by his own conduct had brought the rayati right of the tenant to a termination. Further authority is furnished by that class of cases, including cases of patni sale in which it has been held that the auction purchaser who has paid the back rents has no right of contribution as against the previous tenant : Maharanee v. Harendra (1897) 1 CWN 458, Peary Mohan v. Sriram Chandra (1902) 6 CWN 794, Manindra Chandra v. Jamahir Kumari (1905) 9 CWN 670, Ranglal Sahu v. Kali Shankar (1924) 11 AIR Pat 235 and Dost Mahomed v. Sanjad Ahmed (1884) 6 All 67.
3. The ratio decidendi of these decisions seems to be that ordinarily the purchaser at an execution sale is under a legal liability to pay the rent due upon the property at the time of the sale. From this point of view, if there is a distinction between a rent execution sale and a money execution sale, it is not to the advantage of the purchaser at the latter sale: Mathura Mohan v. Nabin Chandra (1917) 4 AIR Cal 286 and Official Trustee of Bengal v. Purna Chandra Roy : AIR1931Cal202 . It has been pointed out that the trend of decisions is to the effect that the purchaser of a tenure at a sale held in execution of a decree, other than a decree for rent, in the absence of anything to denote the contrary must be taken to have purchased it charged with the rent which might be due at the time. But, if the tenure is sold in execution of a decree for its own arrears of rent, it passes to the purchaser freed from all liabilities for its previous arrears. In the present case it seems to me the Courts below have taken the right view and the plaintiff cannot call upon the defendants to pay the arrears of rent for the period in suit. The appeal fails and is dismissed.
4. I agree that the appeal should be dismissed, but my reasons for coming to this conclusion being somewhat different from those indicated by my learned brother, I think it is desirable that they should be briefly stated. In view of the observations made by their Lordships of the Privy Council in 41 Cal 9262 and by a Bench of this Court in Official Trustee of Bengal v. Purna Chandra Roy : AIR1931Cal202 , find it impossible to hold that arrears of rent automatically become a charge on the holding in arrears as soon as they accrue. In my opinion such a charge can only be created by a rent decree and can only be enforced by the execution of such a decree in the manner laid down in the Bengal Tenancy Act. The contrary view was, it is true, taken by a Bench of this Court in Rishi Kesh Law v. Sons and heirs of Shamsher Khan (1926) 13 AIR Cal 736, but only incidentally and without any reference being made to the Privy Council decision or other authorities. I prefer to follow the later decision in Official Trustee of Bengal v. Purna Chandra Roy : AIR1931Cal202 in which the Privy Council decision was discussed and applied. In Mathura Mohan v. Nabin Chandra (1917) 4 AIR Cal 286 too the contrary view was stated (vide p. 750) but was not applied, the facts of that case being different from those of the cases with reference to which the observations in question were made. It seems to me that those observations were of the nature of obiter and that they would probably not have been made if the attention of the learned Judges who heard the appeal had been drawn to the decision of the Privy Council in A.H. Forbes v. Maharaj Bahadur Singh (1914) 1 AIR PC 111. In these circumstances and in view of the later decision in Official Trustee of Bengal v. Purna Chandra Roy : AIR1931Cal202 already referred to, I am of opinion that the observations in question ought not to be taken as a guide in the case now under consideration.
5. In the present case if the plaintiff had already obtained a rent decree for the arrears of rent due on the tenure, before he put the holding to sale in execution of his money decree, the sale would have been held subject to the charge on account of arrears of rent created by the previous rent decree, and if the plaintiff himself had purchased the tenure (as he actually has done) the charge and with it the judgment debt on account of arrears of rent would have been automatically extinguished. Actually however, there has as yet been no decree for rent and in the view I take of the matter, no charge on the tenure was in existence at the time of the sale. The question then arises whether in spite of the fact that there was no charge on the tenure on account of arrears of rent at the time of the sale in execution of the plaintiff's money decree, those arrears can nevertheless be held to have been extinguished by reason of the fact that the plaintiff himself purchased the tenure at the execution sale. In my opinion it can and must be so held. The plaintiff purchased the tenure with full knowledge that arrears of rent were due to him in respect thereof and he must further be presumed to have known that by purchasing the tenure himself, he was destroying his own security by making it impossible for him to create and enforce a charge on the tenure on account of those arrears by the only method open to him, viz. by obtaining a rent decree and executing it as such. It is only reasonable to suppose that the plaintiff had these considerations in mind at the time of the auction sale and that, he regulated his bidding accordingly, with a view to recovering the arrears of rent due to him by means of his purchase of the tenure. In my opinion the arrears of rent due by the defendants to the plaintiff have been extinguished by the plaintiff's purchase of the tenure and in this view of the matter the appeal must be dismissed.