Norris and Banerjee, JJ.
1. This appeal arises out of a suit brought by the plaintiff, respondent, to recover money due on a mortgage-bond, executed by defendant No. 1, by the sale of the. mortgaged properties, which are six taluks; and if they are not sufficient to pay off the mortgage debt, then by the sale of other property of the mortgagor. Of the other persons joined as defendants, defendant No. 2 is the purchaser of three of the taluks, namely, Nos. 1, 2 and 3, and the remaining defendants now represented by the appellant were the purchasers of two of the taluks, namely, Nos. 4 and 5, at sales in execution of decrees for the rents of the same. These defendants contested the suit on the ground that, as auction-purchasers of the taluks in execution of decrees for arrears of rent, they had purchased the same free of all incumbrances, and that the mortgage was no longer enforceable against the taluks.
2. The first Court decreed the claim against defendant No. 1, but made a decree for sale of taluks Nos. 1, 2, 3 and 6 only. Against that decree both plaintiff and defendants preferred appeals, and the appeal of the plaintiff was allowed, and taluks Nos. 4 and 5 were ordered to be sold in satisfaction of the mortgage debt, while the appeal of the defendants was dismissed.
3. Against the decisions of the Lower Appellate Court, the defendant, who now represents the auction-purchasers of taluks Nos. 4 and 5, has preferred the present appeal, and it is contended on his behalf:
4. First, that the Lower Appellate Court is wrong in holding that the plaintiff, who is a mortgagee from defendant No. 1, is not estopped by the orders made in the course of the proceedings in execution of the rent decrees in the presence of the talukdar, the mortgagor.
5. Secondly, that even if the plaintiff was not estopped by those orders, the Court of Appeal below is in error in holding that they were wrong, and that Section 148, Clause (h) of the Bengal Tenancy Act was applicable to this case.
6. Thirdly, that the Court of Appeal below was wrong in holding that the auction-purchasers were not entitled to annul the incumbrance created by the mortgage, owing to their not having proceeded to do so under Section 167 of the Bengal Tenancy Act.
7. And, fourthly, that the Lower. Appellate Court was wrong in ordering the sale of the mortgaged properties without the qualification that the sale should be subject to the claim under the rent-decrees, when rent was a first charge on them under Section 65 of the Bengal Tenancy Act.
8. The facts upon which the first contention of the appellant is based are shortly these: The defendant No. 1 mortgaged the taluks in favour of the plaintiff on the 7th Bhadro 1291, corresponding to some time in August 1884. Subsequent to the mortgage, the proprietor, under whom the two taluks Nos. 4 and 5 are held, brought two suits for arrears of rent due in respect thereof against the defendant No. 1, and obtained decrees on the 6th June 1885. Those two decrees were executed in 1885, and on the 9th November 1885 the execution cases were struck off. Thereafter (and subsequent to the date when the Bengal Tenancy Act came into operation) one Ganga Charan Shaha, who is shown to be the benamidar for the parties now represented by the appellant, took an assignment of the decrees, and sought to execute the same. He was opposed by the judgment-debtor, the talukdar, on the ground that as the transfer of the decree by assignment, and the subsequent application for execution were made after the Bengal Tenancy Act had come into operation, and as the assignee of the decrees had acquired no interest in the estate, his application for execution could not be granted under Section 148, Clause (h) of the Bengal Tenancy Act. The Court by its order, dated 9th July 1886, overruled this objection, and ordered execution to issue, holding that, as the rent-decrees were passed before the Beagal Tenancy Act came into operation, the execution should proceed under the old law. The execution proceeded, and the assignee of the decrees was the purchaser at the execution sales.
9. The Lower Appellate Court has held that the order of the 9th of July 1886, which was made in the course of proceedings to which the plaintiff was no party, does not bind him; that the said order was wrong; and that the execution sales cannot be regarded as sales at which the purchaser became entitled to the under-tenures free of all incumbrances.
10. The learned vakil for the appellant contends that whether the order of the 9th July 1886 be correct or not the plaintiff is bound by it.
11. No authority is cited in support of this contention; but it is argued that the interest of the mortgagee should be held to be sufficiently represented by the mortgagor, so that a judgment or order which binds the latter ought to be binding on the former; that the balance of justice and expediency is in favour of this view; and that in the particular case before us, the order in question, being one made in the course of proceedings in execution of a rent decree against the recorded tenant, should, according to the principles of the rent law, be held to be binding against all persons having any interest in the tenure.
12. In dealing with this argument we should observe at the outset that the matter is not res Integra, and that there is a strong current of decisions against the appellant's contention, and in favour of the view taken by the Lower Appellate Court.
13. In Dooma Sahoo v. Joonarain Lall 12 W.R. 362 : 4 B.L.R. A.C. 27 (note), Glover and Dwarkanath Mitter, JJ., and in Tirbhobun Singh v. Jhono Lal 18 W.R. 206, Couch, C.J., and Ainslie, J., expressly held that a mortgagee was not bound by a decree passed against the mortgagor after the date of the mortgage. These two cases have been followed in Bonomali Nag v. Koylash Chunder Day I.L.R. 4 Cal. 692; and Madho Pershad Singh v. Purshan Ram I.L.R. 4 Cal. 520; and these last have been followed by the Allahabad High Court in Sitaram v. Amir Begam I.L.R. 8 All. 324. In two of these cases, again, namely, the second and the fourth, the decrees which were held not to be binding on the mortgagee were decrees made in rent suits against the mortgagor; and these cases therefore meet the argument based upon the special provision of the rent law.
14. Nor are the reasons urged on behalf of the appellant sufficient to induce us to dissent from the view taken in the cases cited above. The general rule is that a judgment inter partes binds only the parties, and persons deriving title from them subsequent to the date of the judgment. [See Doe v. Earl of Derby 1 A. and E. 783, and Bigelow on Estoppel, 4th edition, p. 135]. There are no doubt many exceptions to this rule, but they are based either upon grounds of justice and expediency as in the cases in which judgments against a Hindu widow or a shebait have been held to be binding on the reversioner, or the succeeding shebait, or upon express legislation, as in the cases in which decrees for rent against registered tenants have been held to be binding on unregistered transferees of tenures; but the present case does not come under any of these descriptions. A Hindu widow or a shebait must be held to represent the estate completely, as otherwise there could be no one to represent such estate. But the same thing cannot be said of the proprietor of an estate after he has mortgaged it. The mortgagee can always be ascertained; very often his interest in the estate may be much greater than that left in the mortgagor; and sometimes, as in the present case, where after decree it was no part of the mortgagor's interest to protect the incumbrance, the interests of the two are not identical. While on the one hand to one who is anxious to acquire a safe title by res judicata the inconvenience in including the mortgagee as a party defendant is not very great, on the other hand, the injustice of binding the mortgagee by a decree, to which he was no party, must be very considerable. The balance of justice and expediency is in our opinion decidedly in favour of the view taken by the Court below.
15. Nor do the provisions of the rent law furnish any clear reasons against that view. All that they lead to is that a decree for rent of a tenure obtained against the registered tenant binds an unregistered transferee of the same who can show no sufficient cause for not registering his name, and may be enforced by sale of the tenure : see Sham Chand Kundu v. Brojonath Pal Chowdhry 12 B.L.R. 484 : 21 W.R. 94. But whether any such sale was in sufficient conformity with the rent law to be operative in annulling a prior mortgage, or other incumbrance, must have to be determined in the presence of the party claiming the benefit of the incumbrance. There is nothing in the rent law, nor is there any decided case, to support the opposite view. On the contrary two of the cases cited above, Tirbhobun Singh v. Jhono Lal 18 W.R. 206 and Madho Pershad v. Purshan Ram I.L.R. 4 Cal. 520, directly support the view we take.
16. We should add that the assignee of the decree being himself the purchaser in execution in this case, none of those considerations here arise upon which the rights of third parties purchasing in execution decrees have, under certain circumstances, been held to be unaffected by infirmities in the decree or the order for sale.
17. Upon reason and authority, therefore, the view taken by the Court below is correct, and the first contention of the appellant must fail.
18. Nor is there much force in the second contention of the appellant. Though the decree was passed under the former Rent Act, the assignment of the decree and the application for execution by the assignee having been made after the Bengal Tenancy Act came into operation, Clause (h) of Section 148 of that Act must apply to the execution proceedings [see Ranjit Singh v. Meherban Koer I.L.R. 3 Cal. 663], and the sale upon such an application, which is prohibited by that clause, must be held to be no sale under the rent law.
19. It is contended by the learned vakil for the appellant that though that would have been so if the clause in question related to a mere matter of procedure, yet as the rule laid down in that clause affects, not merely a matter of procedure, but also a substantial right of the decree-holder, namely, his right to transfer the decree, the clause ought not to apply to a case like this where the decree had been obtained before it came into operation. If Clause (h) of Section 148 had affected any vested right, the argument would have been sound. [See In re Joseph Suched & Co. L.R. 1 Ch. D. 50 and Gardner v. Lucas L.R. 3 App. Cas. 552, 603]. But does the clause affect any vested right? We think clearly not. It does not prohibit the decree-holder to assign his decree, nor does it prohibit any one from accepting an assignment of the decree, so long as satisfaction can be obtained out of Court. All that it prohibits is an application for enforcement of the decree by an assignee. This is a matter of procedure; at any rate the right affected, if any, is not any right of the decree-holder, but that of the assignee of the decree to apply for execution; and there was no such assignee here before the Bengal Tenancy Act came into operation. The clause in question cannot, therefore, in any sense be said to affect any vested right in this case. The second contention of the appellant must therefore also fail.
20. In support of his third contention the learned vakil for the appellant argued that, though Section 167 of the Bengal Tenancy Act prescribes one mode of annulling incumbrances, an incumbranee is not protected merely because that mode has not been followed. But, as was pointed out during the argument, this contention is fully met by Sections 165 and 166 of the Act which provide that the mode prescribed by Section 167 is the only mode in which incumbrances can be annulled by purchasers of tenures and holdings for arrears of rent.
21. Lastly, it was contended for the appellant that, though the sales in question may not have the effect of annulling the mortgage in favour of the plaintiff, still as rent is declared by Section 65 of the Bengal Tenancy Act to be a first charge on the tenure, and as the appellant is the assignee of the rent decree, the sale that is ordered in satisfaction of the plaintiff's mortgage ought to be subject to such first charge. The answer to this contention is that Section 65, which provides that the 'tenure or holding shall be liable to sale in execution of a decree for the rent thereof, and the rent shall be a first charge thereon,' only intends what is explicitly laid down in subsequent sections of the Act, that is, those in ch. XIV, namely, in that the charge should be enforced by the sale of the tenure or holding free of incumbrances, and if in any case the decree for rent either has not been, or cannot be, enforced by the sale of the tenure, we do not think that the charge created by Section 65 can be enforced in any other way.
22. The grounds urged before us, therefore, all fail, and the appeal must consequently be dismissed with costs.