1. One Ballav Lal barman was the holder of permanent tenure under defendant No. 1 and his predecessor-in-interest. In 1857 Bally Lal executed kabala in respect of this tenure in favour of his wife Radhamani. Ballav Lal, however, continued as the registered tenant until his death in 1891 or thereabout. He was succeeded by his grandson Shyama Prosad who was a minor at the time living under the guardianship of his grand-mother Radhamani and mothewr Kali Moti. The collections in the Mofussil were made in the name of Radhamani and she mortgaged the tenure to the plaintiff on the 7th December, 1894 for Rs. 1,499. About three weeks after this on the 28th December, 1894, defendant No. 1 took from Radhamani a kihtbandy bond for the arrears due on the tenure. In this document Radhamani described her title under the purchase of 1857, and it can hardly be argued that the effect of the acceptance of that document was not to recognise Radhamani as the tenant of the mehnl. On the 27th May, 1896, Radhamani executed another mortgage of the tenure in favour of the plaintiffs who brought a suit upon the two mortgages against Sahyama Prosad as heir and grandson of Radhamani and in possession of her estate and obtained an ex parte decree on the 26th February, 1902. Defendant No 1 in April, 1902, brought a suit for arrears of rent against Shyama Prosad stating that Ballav Lal was the recorded tenant and Shyama Prosad was in possession of the tenure, and obtained an ex parte decree on the 21st June, 1902. The plaintiffs executed their mortgage decree and purchased the mortgaged property on the 15th September, 1902, for Rs. 3,600. Defendant No. 1 executed his rent-decree and himself purchased the property in arrear on the 9th February, 1904, for Rs. 800. The plaintiffs applied for setting aside the sale on the ground of fraud and irregularities, but were not successful. They bring the present suit on the ground that the decree itself was fraudulent as well as the sale, and pray for recovery of khas possession on the declaration that their rights were not affected by the sale.
2. The lower Court has given the plaintiffs a decree holding that decree for rent was fraudulent and collusive. Defendant No. 1 has appealed, and on his behalf it has been contended that the finding is note supported by the evidence in the case. It is quite the learned Judge do not make out any case of fraud against defendant No. 1. It is not alleged or shown that there was no arrear due on the tenure and there is no evidence that defendant No. 1 did anything in respect of the suit that he was not entitled to do under the law. It does not also appear that he had any duty to perform towards the plaintiffs the breach of which would thrown any discredit upon him. We think the finding of fraud is wrong and must be set aside.
3. The decree of the lower Court, however, has been supported on the ground that the decree obtained by defendant No. 1 was not a rent decree under the Bengal Tenancy Act, and in any case the sale brought about by him was not in respect of the tenure by only the right, title and interest of Shyama Prosad, so that their tights as purchasers under the mortgage decree were not affected. It has been further contended that the mortgage lien exists notwithstanding the sale, and as no notice under Section 167 of the Bengal Tenancy Act has been served, the Raja, defendant No. 1, was not entitled to khas possession.
4. With regard to the first point we have seen that defendant No. 1 recognised Radhamani as his tenant by accepting from her the instalment bond for rent. She was, therefore, his recognized tenant from 1301. Upon her death no one took any steps to register himself or herself as her representative himself or herself as her representative. If her purchase was bona fide one, her daughter Lakhimoni, who was alive at the time of rent suit, was alive at the ttime of the rent suit, was her legal representative, if she was a benamdar for her husband then Shyama Prosad was the rightful heir. In any case Lakhimoni was not in possession and Shyama Prosad was sued as the party in possession and there is no dispute that he was really in possession. In fact, no claim has ever been made on behalf of Lakhimoni and both the contending parties have treated Shyama Prosad as the tenant in possession and the question of benami has not been pressed by either party. The suit for rent was, therefore, rightly brought against Shyama Prosad who must be taken as the real tenant. It has been contended that as Shyama Prosad was not recogised as the tenant but was sued merely as he was used merely as he was in possession, the decree obtained is a money decree for compensation for use and occupation. That would have been a legitimate view to take if, as a matter of fact, Shyama Prosad had not been the real tenant: See Ranee Lalun Monee v. Sona Manse Dabee 22 W.R. 334; Sarnimyee v. Denonath Gir Sunnyasee 9 C. 908 : 13 C.L.R. 69. As it is, however, the decree was good decree for rent.
5. As regards the second point, it appears from the order sheet in the execution case in which defendant No. 1 made his purchase in which defendant No. 1 made his purchase that processes of attachment and sale were issued simultaneously, evidently under Section 163, Clause 1 of the Bengal Tenancy Act. It may be presumed that Clause 2(a) of that Section was also complied with. As the sale took place on the first day of sale, subject to registered and modified incumbrances if the bidding were sufficient to liquidate the whole amount of the decree and the costs. The bidding, however, did not reach the level of the decretal amout and was in fact several hundred rupees less; so that the sale could not be held under Section 164, and as there as no second proclamation and sale as contemplated by Section 165, the sale cannot be taken as one held under the Bengal Tenancy Act. The provisions of the Bengal Tenancy Act regarding sales are generally destructive of various derivative rights belonging to third parties not before the Court. The State enforces its claims for revenue under the stringent provisions of the munset law from the zemindars and has enacted the stringent provisions of the tenancy laws for enabling the zemindars and other landlords to realize rents from their tenants, providing safeguards for the protection of the tenants and those that deal with them. The special provisions for the sale of tenures are a part of a public policy intended for the benefit of all parties concerned. If the landlord wants the special results provided for by the Act, he must proceed strictly in accordance with its provisions. We think he has not done this in this case and ho cannot, therefore, claim rights superior to those of an ordinary purchaser at a Civil Court aula. His sale certificate also supports this view as ho is certified to have purchased the right, title and interest, of the judgment-debtor. The learned Vakil for the appellant, has referred us to two cases in this connection: Nazir Mahomed Sirkar v. Girsh Chunder Chowdhhuri 2 C.W.N. 251 and Akoy Kumar Soor v. Bejoy Chand Mohatop 29 C. 813.
6. These cases are clearly distinguishable; in the first case the property sold was described as the proclamation was for the sale of the tenure under Section 59 of Act VIII of 1869, B.C. The learned Judges say: 'the property advertised was the tenure and the property sold was the tenure, according to the sale certificate, and the mere insertion of a statement that the sale was of the rights and interests of the judgment-debtors would not, we think, have the effect, under the circumstances stated, of limiting the sale to such rights and interests and not extending it to the tenure itself.'
7. In the second case the description of the property ended with the words, 'the said lot in arrears,' so that the facts are not similar. It was argued in that case that the property should have been put up first subject to registered and notified encumbrances and afterwards with power to avoid all encumbrances, but this argument was met by the remark that the mortgage in question in that case was not a registered and notified encumbrance. The report does not show under what Section the sale took place or whether the amount of the bidding was sufficient to meet the decree with costs. Under the circumstances we do not feel in any way hampered by that decision.
8. As regards the third point, the argument of the learned Vakil for the respondent is, that notwithstanding the decree and sale, he is still entitled to fall back upon his mortgage lien to defend himself from the attack of defendant No. 1 who claims to oust him. In the case of Akoy Kumar Soor v. Bejoy Chand Mohatop 29 C. 813 hereinabove quoted, the mortgagee obtained his decree absolute in May 1892. The Maharaja bought his suit for arrears in 1893 and purchased the 'lit in arrear' in 1893. The mortgagee then applied for executing his mortgage decree against the Maharaja as purchaser in 1901. The Maharaja then applied for the service of notice under Section 167 and the learned Judges held that as this application was not made within the time limited by Section 167 it was barred and the mortgagee was entitled to execute his decree against the mortgagee was entitled to execute his decree against the mortgaged portion of the tenure. The result of this ruling is, that the incumbrance of the mortgage was in existence notwithstanding the decree absolute on the mortgage. The is, however, an obiter dictum in the case that after the mortgage had culminated in a decree there would be no incumbrance to annul under Section 167; in the first place, the learned Judges say, it is no necessary to decide that question and, in the second place, that opinion is quite inconsistent with the decision on the point of limitation linger Section 167; for, if there was no encumbrance there was nothing to annul and no application for annulment could be barred. In the case of Bhawani Koer v. Mnthnra Prasad 7 C.L.J. 1 a revenue sale of an estate under Section 54 of Ant XI of 1859 took place after a mortgagee had purchased in execution of a mortgage decree of his own and after the sale had been confirmed. The revenue sale was subject to all firmed. The Court held that the mortgagee-purchaser at the revenue sale. In the present case, if the plaintiff had not proceeded to sale before the purchase of defendant No. 1, the latter would have been at best entitled to annul the plaintiff's incumbrance under Section 167; there is no reason why he should be in a worse position by reason of his diligence in proceeding to sale first. It is true he could have paid up the decree of the defendant and saved himself form this tortuous litigation, but he was not bound to do that. He was not liable for the rent before his purchase and his remedy over, if any, against his mortgagor by way of contribution might be an illusory remedy after all. In any case he is entitled to rely on all defences legitimate to his jucidical positions, and we think that the Raja defendant was, even if he had taken all proceedings according to law, not entitled to oust him without annulling his incumbrance under Section 167 of the Bengal Tenancy Act, and this has not been done in this case.
9. Under these circumstances although we set aside the judgment of the Court below, we confirm the decree of the said Court but with out costs in either Court.