1. The substantial question in controversy between the parties to this litigation, relates to the true effect of an execution sale held on the 7th April 1902. The events antecedent to that sale may be briefly narrated. Prior to the year 1870, three brothers Chatradhar, Godadhar and Sarobar were in joint possession of the disputed properties on a jagir tenure under the Raja of Pachete. In 1878, default was made in the payment of rent, and on the 15th July of that year, the jagir was sold in execution of a rent-decree at the instance of the and lord, and was purchased by himself. Three suits for reversal of the sale were then commenced by the tenants, each in - respect of a third share of the property. The suit of Chatradhar abated, while those commenced by Godhadhar and Sarobar were dismissed by the Court of first instance on the 30th September 1893. Upon appeal to this Court, these two suits were decreed on the 2nd March 1896. The Raja appealed to the Judicial Committee only against the decree in the suit of Godadhar. Upon the death of Godadhar, shortly after the decree of this Court, that appeal was contested by his brother Sarobar in whom his interest had vested by survivorship; on the 9th December 1899, the decision of this Court was reversed by the Judicial Committee in Tara Lal v. Sarobar 27 C. 407 : 27 I.A. 33 : 4 C.W.N. 533. The ultimate result of the litigations, therefore, was that, in so far as Chatradhar and Godadhar were concerned, the Raja of Pachete became the owner of their interest in the tenure; but the tenure continued in operation in respect of the interest of Sarobar. Meanwhile, default had again been made in payment of rent, and, on the 6th March 1901 the Raja obtained a decree for rent of the years 1896 and 1898 for the two shares of the tenure originally belonging to Godadhar and Sarobar. That decree was subsequently executed and the present appellant became the purchaser at the execution sale held on the 7th April 1902. His contention is that the effect of the sale is to annul all incumbrances created on the property by the tenure-holder. This position has been negatived by the Court below; in our opinion, that decision cannot be successfully challenged.
2. It was finally determined by the Judicial Committee on the 9th December 1899 that the interest of Godadhar had vested in the Raja of Pachete; consequently, after that date, it was not open to the Raja as landlord to sue for arrears of rent in respect of that share, though he might possibly have claimed mesne profits. The decree obtained by the Raja on the 6th March 1901 was thus essentially a decree for arrears of rent of the share of the tenure still held by Sarobar and for damages for use and occupation of the share of the tenure once held by Godadhar. In execution of this decree, the third share of the tenure owned by Sarobar was brought to sale. The question thus arises whether this was a sale under Section 105 of Act X of 1859 read with Section 16 of Act VIII of 1865 B.C.
3. Section 105 of Act X of 1859 provides that if the decree be for an arrear of rent due in respect of an under-tenure, which by the title deeds or the custom of the country is transferable by sale, the judgment-creditor may make application for the sale of the tenure, and the tenure may thereupon be brought to sale in execution of the decree according to the rules for the sale of under-tenures for the recovery of arrears of rent due in respect thereof contained in any law for the time being in force. Section 16 of Act VIII of 1865 B.C. then provides that the purchaser of an under-tenure sold under the Act shall acquire it free from all incumbrances which may have accrued thereon by any act of any holder of the said under tenure, his representatives, or assignees, unless the right of making such incumbrances shall have been expressly vested in the holder by the written engagement under which the under-tenure was created or by the subsequent written authority of the person who created it, his representatives or assignees. This 'section has to be read with Section 4 which provides that whenever a decree for an arrear of rent, due in respect of an under-tenure saleable under the provisions of Section 105 of Act X of 1859, shall have been obtained and an application for the sale of the said under-tenure under the same section shall have been made and allowed, the Collector shall thereupon cause certain notices to be served. This section, therefore, makes it essential, in order that the purchaser may acquire the property free from all incumbrances under Section 16 that the decree under execution should be one for arrears of rent due in respect of the under-tenure brought to sale. In the case before us, the decree executed against one-third share of the tenure, the property of Sarobar, was not only for arrears of rent due on account of that share, but also for a sum due in respect of the share of Godadhar, which had finally vested on the landlord himself. Consequently, it is plain, upon a construction of Section 105 of Act X of 1859 and Sections 4 and 16 of Act VIII of 1865 B.C., that the purchaser has not taken the property free from all incumbrances. This view is supported by the terms of Section 6 of Act VIII of 1865 B.C., which describes the procedure whereby the sale may be stopped. If the sum due under the decree together with interest to date of payment and all costs of process be paid into Court, at any time before the sale commences, whether by the defaulting holder of the under-tenure or any one on his behalf or any one interested in the protection of the under-tenure, such sale shall not take place, and the provisions of Section 13 of Regulation VIII of 1819 for the recovery of sums paid by other than the defaulting holder of the under-tenure to stay the sale of the under-tenure, shall be applicable to all similar payments made under the section, it is fairly clear, therefore, that the payment contemplated by this section is payment of arrears due in respect of the under-tenure sought to be brought to sale. It was never contemplated by the Legislature that the person who seeks relief under Section 6 might be called upon to pay the arrears due in respect of not only the tenure sought to be brought to sale but also some other property. To put the matter briefly, if a single decree is obtained for arrears of rent of two distinct tenures, it operates as a decree for money when in execution thereof either tenure is brought to sale; this view is supported by a long series of decisions: Hridoy Nath Das v. Krishna Prosad Sircar 34 C. 238 : 6 C.L.J. 153 : 11 C.W.N. 497; Baikanta Nath Roy v. Thakur Debendro Nath Sahi 11 O.W.N. 676; Nando, Lal v. Sadhu Charan 7 C.L.J. 96; Bipra Das v. Rajaram 13 C.W.N. 650 : 36 C. 765 : 3 Ind. Cas. 306; Mulluk Chand Das v. Satish Chandra Das 11 C.L.J. 56 : 3 Ind. Cas. 306 : 14 C.W.N.. 335 and Rash Mohini Dasi v. Debendra Nath Sinha 16 C.W.N. 395 : 13Ind. Cas. 604 . The contention of the appellant to the contrary is opposed to the fundamental principle that the purchaser at a sale for arrears of rent, under Section 16 of Act VIII of 1865, 3. C, acquires the property free of ail incumbrances, only because the sum sought to be realised forms a first charge on that property. As was observed by Sir Richard Couch, C.J., in the case of Sham Chand Kundu v. Brojonath Pal Chowdhry 21 W.R. 91 : 1.2 B.L.R. 484, the rent is not regarded as due from the person against whom the decree is obtained but is due in respect of the tenure. If, therefore, the landlord seeks to recover by the sale of a tenure, not merely arrears due therefor, but an additional sum not realisable in respect of that tenure, the purchaser at the execution sale does not acquire the special status mentioned in Section 16 of Act VIII of 1865, B.C. Consequently, the purchaser in the present case is not entitled to the privileges assigned to a purchaser at a sale in execution of a decree for arrears of rent under that section. We may finally observe that even if the purchaser could claim the status of a purchaser at a sale for arrears of rent, there would still be considerable difficulty in his way, because the incumbrance he seeks to annul by right of his purchase on the 7th April 1902 is not an encumbrance imposed on the property by the defaulter; it is admittedly a putni created more than twelve years before on the 13th January 1879 by the superior landlord during the time he was in possession as owner, after his purchase at the sale of the 15th July 1873 and before its partial reversal by this Court.
4. The result is that the decree of the Subordinate Judge is affirmed and this appeal dismissed with costs.