1. The plaintiff, who is the appellant in this case, purchased a holding in execution of a decree for arrears of rent on the 18th September 1913 and obtained formal possession on the 5th February 1914. He was, however, resisted by the defendant who had purchased the interest of one of the tenants in execution of a mortgage-decree on the 18th May 1912. The rent suit appears to have been instituted on the 15th April 1912, and the sale in execution of the rent-decree took place, as stated above, on the 18th September 1993. The defendant's purchase at the sale in execution of the mortgage decree, therefore, took place after the institution of the rent suit, but before the sale in execution of the rent decree.
2. The plaintiff brought the present suit for recovery of possession on the basis of his right by purchase at the rent sale. The Court of first instance decreed the suit. On appeal the decree was reverted on the ground that the plaintiff had not annulled the encumbrance of the defendant, the service of notice under Section 137, Bengal Tenancy Act, not having been proved. The plaintiff has appealed to this Court.
3. The question for consideration is, whether the defendant had any subsisting encumbrance at the date of the purchase by the plaintiff at the rent sale which it was necessary to annul under the provisions of Section 167 of the Bengal Tenancy Act The learned District Judge, relying upon the decision in the case of Banbihari Kapur v. Khetra Pal Singh Boy 13 Ind Cas. 785 : 38 C. 923 : 16 C. W. N. 259., held that 'the right purchased by the defendant was an encumbrance within the meaning of Section 161 of the Bengal Act', and that he was entitled to 'fall back upon his original mortgage as a shield' against the purchaser in execution of the landlord's decree for arrears of the rent of the holding in question.
4. The learned Judges in the case of Banbihari Kapur v. Khetra Pal Singh Roy 13 Ind Cas. 785 : 38 C. 923 : 16 C. W. N. 259. relied upon the decision in Bhawani Roer v. Mathura Prasad (2) 7 O.(sic) J.(sic)at p. 20.. The latter case wan, however set aside on appeal by the Judicial Committee: See Bhawani Kumar v. Mathura Prasad Singh 16 Ind. Cas (sic) 40 C. 89 : 16 C. W. N 9(sic)5 : 23 M.L.J. 3 1 : 12 M. L. T. 35; (1912), M.W.N. 214; K Bom. L. R. 1046 : 10 C. L. J. 606 : 39 I. A. 228 (P.C.).
5. It was held by their Lordships that after the sale took place on the mortgage, the mortgage who purchased at the sale became the owner of the property and that be could not maintain as against himself or again it third parties unconnected with the mortgage transactions upon the property, the position that his mortgage still remained an encumbrance thereon.
6. It is true that the defendant's purchase in execution of the mortgage decree took place after the institution of the rent-suit, but he purchased a portion of the holding long before the sale in execution of the rent decree took place and although he was not liable for arrears of rent for the period before his purchase, the rant was a first charge upon the holding. He, therefore, purchased subject to that charge. He became the owner of a portion of the holding before the rent sale took place, and his interest in the holding (which was that of an unregistered transferee) passed at the rent sale. There was, therefore, no subsisting encumbrance at the date of the plaintiff's perchase which the plaintiff was bound to annul under the provisions of Section 167 of the Bengal Tenancy Act.
7. The decree of the lower Appellate Court is accordingly set aside and that of the Court of first instance restored. We make no order as to costs.