Skip to content


Sailoja Prosad Chatterjee Vs. Gyani Das - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in16Ind.Cas.355
AppellantSailoja Prosad Chatterjee
RespondentGyani Das
Cases ReferredGiribala Debia v. Mina Kumari
Excerpt:
execution of decree - rent decree--subsequent money decree obtained by landlord against tenant--execution of money decree--attachment and sale of tenure--proclamation stating tenure subject to judgment-debt in respect of rent decree--purchase of tenure by landlord in execution sale--right of landlord to execute rent decree, whether extinguished. - .....on behalf of the decree-holders against an order whereby this application for execution of a rent decree obtained by them in 1904 against the respondent has been dismissed. it appears that in 1906 the appellants obtained a decree for money against the respondent. in execution of that decree, they attached the tenure in respect of which the rent decree now sought to be executed had been previously obtained. at the instance of the decree-holders, it was proclaimed at the time of sale that the tenure in question was subject to a judgment-debt under the decree of 1904 at the sale which followed, the decree-holders purchased the property. they now seek to execute the decree against the properties of the judgment-debtor other than the defaulting tenure which they themselves have.....
Judgment:

1. This is an appeal on behalf of the decree-holders against an order whereby this application for execution of a rent decree obtained by them in 1904 against the respondent has been dismissed. It appears that in 1906 the appellants obtained a decree for money against the respondent. In execution of that decree, they attached the tenure in respect of which the rent decree now sought to be executed had been previously obtained. At the instance of the decree-holders, it was proclaimed at the time of sale that the tenure in question was subject to a judgment-debt under the decree of 1904 At the sale which followed, the decree-holders purchased the property. They now seek to execute the decree against the properties of the judgment-debtor other than the defaulting tenure which they themselves have purchased. The Subordinate Judge has held that the effect of the purchase by the decree-holders in 1906 was to extinguish the decree which they now seek to execute. On behalf of the appellants, it has been contended that this view is erroneous, because the rent decree, as appears on. the face of the record, has not yet been satisfied and is consequently capable of execution against the judgment-debtor named therein. It may be conceded, as was pointed out by this Court in the cases of Fotick Chunder Dey v. Foley 15 C. 492 and Sourendra Mohan Tagore v. Surnomoyi 26 C. 103 : 3 C.W.N. 38 that a decree-holder who has obtained a decree for rent is free to proceed against any property of the judgment-debtor; he is under no obligation lo proceed in the first instance against the defaulting tenure. This principle, however, id of ho assistance to the decree holders. The real question in the present case is, whether the effect of the purchase by the appellants has been to extinguish their rights under the rent decree. When they took out execution of the money decree against the tenure, they were bound to notify that they held a decree for rent enforceable against it: if they had no notified the rent charge, they could not have subsequently pursued the property, in the hand of a bona fide purchaser for the satisfaction of their dues Doollub Sircar v. Kristo Coomar Bukshee 12 W.R. 303 : 3 B.L.R. A.C. 407; Munnoo Lall v. Lall v. Choonee Lall 21 W.R. 21 : 1 I.A. 144; Doolee Chund v. Oomda Begum 24 W.R. 263; Nursing Narain Singh v. Roghoobur Singh 10 C. 609; Giribala Debia v. Mina Kumari 5 C.W.N. 497. It was thus, at their instance, that the proclamation was very properly made that the tenure would be sold subject, to the judgment-debt under the decree of 1904. Whoever, therefore, purchased at the sale, would take the property subject to the liability notified, and it makes no difference that the decree-holders themselves are the purchasers; the judgment-debt in their favour must consequently be deemed to have been extinguished. The position might possibly have been different, had the property been purchased by a stranger. In that event, if the decree-holders had proceeded to execute the decree for rent against other properties of the judgment-debtor, the judgment-debtor might have been able to realise the sum from/the execution purchaser upon the property in whose hands lay the responsibility primarily to satisfy the decree. In the case before us, however, the decree-holders themselves are the execution purchasers, and they cannot be permitted any longer to execute the decree.

2. The result is that the order of the Subordinate Judge is affirmed and this appeal dismissed with costs. We assess the hearing fee at three gold mohurs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //