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Kedar Nath Sen and ors. Vs. Idu Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal331,51Ind.Cas.746
AppellantKedar Nath Sen and ors.
Respondentidu Khan and ors.
Cases Referred and Bibi Taibatannessa Chowdhurani v. Pravabati Dasi
Excerpt:
landlord and tenant - mortgage by tenant--rent decree in favour of landlord--mortgage decree m favour of mortgagee--purchasers, content between--priority. - .....to enforce a mortgage held by the plaintiffs' father. the defendants claimed as purchasers under a rent decree obtained by the landlords of the mortgagor of the plaintiffs, that is defendants nos. 4 to 6. the competition, therefore, was, it is quite clear, one between the purchasers in execution of a mortgage-decree of the tenant's interest and the purchasers in execution of a rent decree obtained against the mortgagor, the tenant. the cases in this court are quite clear that between those interests the purchaser in execution of the rent decree has priority over the purchase in execution of the mortgage decree. the cases of gopi nath mahapatra v. kashi nath beg 1 ind. cas. 85 ; 9 c.l.j. 234 ; 13 c.w.n. 412 and bibi taibatannessa chowdhurani v. pravabati dasi 4 ind. cas. 750 ; 10 c.l.j......
Judgment:

1. This is an appeal by the plaintiffs against the decision of the learned Subordinate Judge of Baukura, dated the 31st July 1917, affirming the decision of the 1st Munsif at Bishenpur. The plaintiffs brought the suit to recover possession of certain immoveable property, which they said they had purchased in execution of a mortgage decree passed in a suit which was brought to enforce a mortgage held by the plaintiffs' father. The defendants claimed as purchasers under a rent decree obtained by the landlords of the mortgagor of the plaintiffs, that is defendants Nos. 4 to 6. The competition, therefore, was, it is quite clear, one between the purchasers in execution of a mortgage-decree of the tenant's interest and the purchasers in execution of a rent decree obtained against the mortgagor, the tenant. The cases in this Court are quite clear that between those interests the purchaser in execution of the rent decree has priority over the purchase in execution of the mortgage decree. The cases of Gopi Nath Mahapatra v. Kashi Nath Beg 1 Ind. Cas. 85 ; 9 C.L.J. 234 ; 13 C.W.N. 412 and Bibi Taibatannessa Chowdhurani v. Pravabati Dasi 4 Ind. Cas. 750 ; 10 C.L.J. 640 are clear authorities on that point. The serving of notice, therefore, to annul the encumbrance was a work of supererogation, and it was not necessary for the defendants to do that in order to support the priority of their purchase under the rent decree as against the purchasers under the mortgage decree. In that view of the case the other points urged do not arise. The present appeal, therefore, fails and is dismissed with costs.


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