Rowland, J.@mdashIn this first appeal the defendant appellant was an auction purchaser of the rent-claimed tenures and the main question is, from what date he became liable for the rent. The landlord had obtained an earlier rent decree against Deo Bihari, the tenure holder, in execution of which the tenure was sold and purobased at auction by the present defendant, Chhatar Singh, on 19th June 1933. The landlord brought this suit impleading both the for. mer tenant Deo Bihari and the purchaser Chhatar Singh and claiming rent for all kists (there are nine kists per year) of the years 1341 to 1343. Subsequently, Deo Bihari was discharged from the record and the landlord claimed rent from Chhatar Singh only for the entire period, whereas the defendant contended that he was nob liable for rent for the period before October 1934, when he took delivery of possession.
2. Relevantdates are 19th June 1933, auction sale; 19th February 1934, confirmation of sale after disallowing the objection of the decree holders. This date corresponds to 20th Phagun 1341 Fasli. Again on 19th March 1934, the decree-holders appealed but their appeal was dismissed under Order 41, Rule 11, on 20th April 1934. The Subordinate Judge held that the defendant was not liable for instalments accruing due before 19th February 1934, totaling Rs. 734-3-0 but was liable for the kist of Phagun 1341 and all subsequent kists. Another point was raised in this appeal, namely that the lower Court erred in allowing interest on the arrear of rent at 12 1/2 per cent.
3. The latter contention need not detain us long. It is based on the amendment made in 1937 to Section 67, Bihar Tenancy Act. Previous to that amendment the statutory rate of interest was 12 1/2 per cent, per annum. The , amendment declares that:
An arrear of rent shall bear simple interest at the rate of six and a quarter per centum per annum.
The amendment came into force on 29th December 1937 and the decree of the Subordinate Judge was passed on 21st December 1937, that is to say, it was clearly a correct decree on the date when it was passed. Interest after decree has been allowed at 6 per cent and no objection is taken to this. The new Section 67 does not apply as it is not expressed to be retrospective.
As to the date from which the plaintiffs are entitled to rent there is an appeal by the defendant as well as a cross objection by the plaintiffs. The defendant contends that until he obtained delivery of possession he should not be liable to pay rent in the circumstances of this case because the delay in his getting possession of the property was due to the decree-holder having resisted his right as purchaser of the property by preferring an objection u/s 173, Bihar Tenancy Act, alleging that the defendant, Chhatar Singh, was only a benamidar for the judgment-debtor and the decree-holder sought to have the sale set aside on this ground.
4. The objection being disallowed the decree-holder appealed and so, it is said, that even if the defendant is not entitled to be excused from paying rent up to October 1934 when he received delivery of possession he should at least be excused from payment up to the date of the dismissal of the plaintiffs'' appeal to the District Judge; for, up to that date, even if it was lawful for him to take possession, there was the risk of the sale being set aside. There might be some equity in favour of the appellant if the decree-holder had obtained an order of the District Judge staying delivery of possession, but there was no such order passed and in this state of the facts we can find no legal basis for the argument. The position, it seems, is governed by Section 169(1)(c), Bihar Tenancy Act.
5. The decree-holder is entitled to receive from the surplus sale proceeds any rent which may have fallen due in respect of the tenancy between the institution of the suit and the date of the confirmation of the sale and no longer. It is quite clear then that from the date of the confirmation of the sale the only person to whom the landlord can look for his rent was the auction-purchaser.
Then it is contended that even on this view the Phagun kist which amounts to Rs. 210-13-0 should be excluded; but the matter is governed by Section 53, Bihar Tenancy Act, which has been explained in (1994) 21 Cal 383 Satyendra Nath v. Nilkantha Singh Each instalment of rent is considered to fall due on the last date of the period in respect of which it is payable. Therefore, the kist for Phagun must be considered to have fallen due on the last date of that month. As pointed out in this decision rent is not considered as accruing from day to day. The objection was raised in that case that on this view it might go very hard against the purchaser of the tenure who would be made liable for rent due in respect of the whole of a period of time when he has had possession only for a part of that period, and it may be for a very small part.
6. The answer to this objection was that the purchaser can always protect himself when making his purchase by paying for the property only so much as is equivalent to its value, regard being had to the liability with which it is burdened. In cross-objection the extreme claim that the landlord should get from the purchaser rent for the entire period in suit is manifestly untenable and is not pressed; but it is contended that he should get rent with effect from the date of sale and for this reference is made to Section 65 Civil P.C., under which the property is deemed to have vested in the purchaser at an auction sale from the time when the property is sold and not from the time when the sale becomes absolute. This provision in the present Code is a distinct departure from Section 316 of the old Code of 1882 by which the title to immovable property sold at an execution sale vested in the purchaser from the date of the sale certificate, that is the date on which the sale became absolute.
7. Mr. Hasan Jan for the cross-objectors relies on AIR 1914 Cal 785 Bejoy Chand Mahtap v. Sashi Bhusan Bose. Here it was held that as a consequence of the alteration occasioned by Section 65, Civil P.C., the judgment-debtor is not liable for rent beyond the time when the property is sold and the liability of the surplus sale proceeds under Clause (c) of Section 169, Bihar Tenancy Act, must be similarly limited so as to correspond with this. This decision was followed without comment in a later case of the same High Court in AIR 1919 Cal 341 Ramlal Das v. Banoliram Mokhopadhya; but with great respect to the learned Judges who decided those cases it seems to me that their attention was not drawn to Section 143, Ben. Ten. Act. The CPC under this section applies to rent suits only subject to rules made under the Tenancy Act and subject also to the other provisions of the Tenancy Act. The result of this is that where there is a repugnancy between any provision of the Bengal Tenancy Act and anything contained in the CPC the special law, that is to say, the Bengal Tenancy Act, must beheld to prevail and the more general enactment, that is to say, the Civil Procedure Code, will to that extent be not applicable. It is stated in the clearest terms in S, 169(1)(c) that the decree-holder is entitled to draw from the surplus sale proceeds any rent which may have fallen due to him up to the date of the confirmation of the sale. I am at a loss to understand how it can be said that a contrary result can follow without conflict with the express words of this section, and, indeed, without injustice. For the judgment-debtor cannot be ousted from possession till the sale is confirmed. Section 65, Civil P.C., determines priority as between purchasers at successive sales.
8. I cannot suppose it is meant to confer on a defaulting tenant the privilege of rent-free occupation for so long as he or the decree-holder can delay confirmation of the sale.
But it is said that even if the decree-holder retains his charge on the surplus sale proceeds this would not deprive him of the remedy against the auction purchaser. In fact it is suggested that the present procedure is so beneficial to the landlord as to give him a double remedy. There are however difficulties in taking this view. The rent is of course declared by Section 65, Bihar Tenancy Act, to be a first charge on the tenancy.
9. Now the ordinary rule as to the consequences of a suit to enforce a charge or a mortgage is that on sale of the charged or mortgaged property the purchaser acquires the rights of both mortgagor and mortgagee, so that the charge or mortgage sought to be enforced is extinguished. It is true that rent is in a special position because it accrues periodically and a fresh charge is always being created anew in respect of rent freshly accrued; but what we have to see is for what rent was the decree-holder enforcing a charge. I think that the only interpretation we can place on Section 169(1)(c) is that he was enforcing a charge for the rent not only to the date of suit but rent that should accrue due up to the date of the confirmation of the sale and if that was the extent of the charge that he was en-forcing that will also be the extent of the charge which is extinguished.
10. The general rule is as stated in
It is settled that after a holding has been once sold in execution of a rent decree and has passed out of the possession of the tenant, it cannot again he sold in execution of any other decree for rent due by the same tenant.
11. The rule is not abrogated by the decisions which recognize one special Case in which the purchaser may become liable to pay rent accruing due before the date of sale or of its confirmation. That case arises when as in 6 CWN 877 Haradhan Chattoraj v. Kartik Chandra notice has been given in the sale proclamation itself that the holding is being sold subject to a liability for earlier arrears of rent. The decisions of this Court which I cited above were considered in
Agarwala, J.
12. I agree.
