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Kali Prosanna Ray Vs. Prem Chand Mahapatra and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal1062,95Ind.Cas.853
AppellantKali Prosanna Ray
RespondentPrem Chand Mahapatra and ors.
Cases ReferredAkhoy Kumar Soor v. Bejoy Chand Mohatap
Excerpt:
bengal tenancy act (viii of 1885), sections 159, 163, 167 - sale proclamation issued on wrong form--auction-purchaser, rights of, how to be, determined. - .....'go,' in execution of a certificate issued for recovery of rent under the provisions of the bengal tenancy act and having purchased the property with the right to annul all incumbrances, he served a notice under section 167 of the bengal tenancy act and thereby the mortgage on the property purchased by him had been annulled. the munsif passed a decree in favour of the plaintiff against all the defendants including the property purchased by defendant no, 4. the defendant no. 4 only appealed against that decree and on his appeal the learned district judge has held that the mortgage on the property purchased by defendant no. 4 has been annulled by proper service of notice under section 167 of the bengal tenancy act. the contention on behalf of the appellant is the same which was.....
Judgment:

1. This appeal is by the plaintiff and it arises out of a suit for enforcing two mortgage-deeds with reference to the property in question. The deeds were executed by the defendants Nos. 1 and 2 in favour of the plaintiff. Defendants Nos. 3 to 6 were made parties on the allegation that they were not interested in the equity of redemption by reason of their subsequent purchase of the mortgaged properties. Defendant No. 4 really contests the suit. His contention is that he was an auction-purchaser of the property in schedule 'Go,' in execution of a certificate issued for recovery of rent under the provisions of the Bengal Tenancy Act and having purchased the property with the right to annul all incumbrances, he served a notice under Section 167 of the Bengal Tenancy Act and thereby the mortgage on the property purchased by him had been annulled. The Munsif passed a decree in favour of the plaintiff against all the defendants including the property purchased by defendant No, 4. The defendant No. 4 only appealed against that decree and on his appeal the learned District Judge has held that the mortgage on the property purchased by defendant No. 4 has been annulled by proper service of notice under Section 167 of the Bengal Tenancy Act. The contention on behalf of the appellant is the same which was urged before the learned Judge. It is that the sale was not in accordance with the provisions of the Bengal Tenancy Act, as the procedure laid down in Section 163, Sub-section 2, Clause (a) was not followed. It is also urged that the attachment of the property and the sale proclamation not having been issued at the same time, it must be held that the sale was not conducted under the Bengal Tenancy Act but it was a sale held under the C. P. C. and, therefore, the auction-purchaser is not entitled to the benefit of the provisions of Section 167 of the Bengal Tenancy Act. The learned Judge did not accept the contention on behalf of the plaintiff and following the case of Mahabir Prasad v. Baiju Lal 39 Ind. Cas. 230 : 2 P. L. J. 176 : 1 P.L.W. 351 : (1917) Pat. 143. decreed the appeal of the defendant No. 4. It is for us to consider whether that view should be accepted.

2. The contention on behalf of the appellant is that all the proceedings laid down in the Act should be strictly followed in order to apply the provisions about annulment of an incumbrance by an auction-purchaser. It has been found that the certificate was a proper certificate for recovery of rent.

3. The question is whether the error of using a form which is not usual in proceedings under Section 163 of the Bengal Tenancy Act makes it a sale different from a sale under the Bengal Tenancy Act. The argument based on the use of a particular form of sale proclamation cannot be accepted. As was observed in the case of Akhoy Kumar Soor v. Bejoy Chand Mohatap 29 C. 813., where also, by carelessness or oversight a wrong form was used for the proclamation of sale, in order to find what rights the auction-purchaser obtained under the sale, the true meaning of the decree under which the sale took place as well as the proceedings leading up to the sale should be looked into. There is no question that the sale in this case was for arrears of rent and the property in arrear was sold. We have to see if there is any thing which deprives the auction-purchaser of the rights of a purchaser in execution of a rent decree.

4. Section 159 of the Bengal Tenancy Act provides as follows:

Where a tenure or holding is sold in execution of a decree for arrears due in respect thereof, the purchaser shall take subject to the interests denned in this Chapter as 'protected interests,' but with power to annul the interests denned in this Chapter as 'incumbrances'.

Provided as follows:

(a) A registered and notified incumbrance within the meaning of this Chapter shall not be so annulled except in the case hereinafter mentioned in that behalf; (b) the power to annul shall be exercisable only in manner by this Chapter directed.

5. That section, therefore, provides that whenever a tenure or holding is sold in execution for its own arrears, the purchaser has the power to annul all incumbrances and Clause (a) and (b) lay down the modes in which the power to annul should be exercised. Different modes are prescribed for annulling ' registered and notified incumbrances ' and incumbrances which are not such. Where the incumbrance is registered and notified, the proclamation should be under the provisions of Section 163 (2)(a).

6. There is nothing to show in this case that the present incumbrance is a registered and notified incumbrance. It was, therefore, unnecessary to state in the proclamation the particulars mentioned in Section 163, Sub-section (2), Clause (a). It is not a protected interest and, therefore, prima facie under Section 159 the purchaser has the right to annul the incumbrance if he has followed the provisions of sub-Clause (b): that procedure he has followed by serving notice under Section 167 of the Act. He has, therefore, annulled the incumbrance according to law.

7. It is, however, contended that as the procedure laid down in Section 163 Sub-section (1) that is, the procedure relating to the issue of sale proclamation along with the order of attachment of the property was not followed, the purchaser is not entitled to have recourse to the provisions of Section 159. But that, provision is for the benefit of the landlord in order to expedite the sale, and that does not affect the interest of the judgment-debtor or the purchaser in any way. The incumbrancers in the present case, therefore, cannot claim any benefit on the ground that the sale was not under the Bengal Tenancy Act as the provisions of the Act were not complied with.

8. We are, therefore, of opinion that the decision of the learned Judge is right and this appeal should be dismissed with costs.


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