1. The plaintiff-appellant purchased the land in dispute ata sale held in execution of a decree on a mortgage executed in his favour bythe father of the defendants Nos. 4 to 6. Subsequent to the decree on the saidmortgage and before the sale in execution thereof, the landlords, thedefendants Nos. 2 and 3, obtained a decree for rent against the tenants(defendants Nos. 4 to 6) and purchased the holding at the sale held inexecution of that rent-decree, and settled the land with the defendant. No. 1,who alone contested this suit. The plaintiff sued for possession of the land,as the purchaser under his mortgage-decree, on the ground that the decree forrent was a fraudulent one and did not pass any title to the landlords. Therewas an alternative prayer that, if in the opinion of the Court, the possessionof the landlords and the settlement with the defendant No. 1 were valid, thenthe plaintiff might he allowed to pay the decretal amount (of the rent) or thenazarana mentioned in the pattah of the defendant No. 1. The Court of firstinstance held that the rent-decree was fraudulent and, accordingly, gave adecree to the plaintiff for possession. On appeal, the lower Appellate Courtheld that the rent-decree was not fraudulent and set aside the decree of theCourt of first instance and dismissed the plaintiffs suit. The plaintiff hasappealed to this Court.

2. The rent-decree and the sale held under it not beingfraudulent, the entire holding including the interest of the plaintiff aspurchaser passed by the sale. As purchaser, the plaintiff stood in the sameposition as an unregistered transferee of the holding and there can be no doubtthat his interest as such purchaser passed by the sale.

3. It has, however, been contended on behalf of theplaintiff-appellant that the plaintiff was entitled to set up his right asmortgagee, as against the purchaser under the rent decree and that, in thatview of the matter, he was entitled to redeem and reliance has been placed onthe case of Raja Ban Bihari Kapur v. Khettra Pal Singh Roy :13 Ind. Cas. 785 [LQ/CalHC/1911/362] : 38 C. 923 : 16 C.W.N. 259. In that case, there are, nodoubt, observations to the effect that, where a mortgagee of a tenure gets adecree and purchases the mortgaged tenure at a sale in execution of hismortgage decree and the tenure is subsequently sold again in execution of arent-decree against the original tenant, it is open to the mortgagee to fallback on his mortgage as a shield against the purchaser under the rent sale.But, in that case, the purchaser at the rent sale did not acquire the holdingfree from encumbrances as the landlord did not adopt the provisions laid downby the Bengal Tenancy Act, and he, therefore, could not claim any rightssuperior to those of an ordinary purchaser at a Civil Court sale. Under thosecircumstances, the purchaser at the rent sale must be considered merely as apurchaser of the right, title and interest of the judgment-debtor, and to standin the same position as the judgment-debtor. The facts, therefore, of that caseare different from those of the present case. The learned Vakil for theappellant has, however, strongly relied upon the principle that a mortgagee whohas obtained a decree upon his mortgage, or has purchased the property inexecution of such decree, is entitled to use his mortgage as a shield againstthe purchaser under the rent Bale. In the present case, the plaintiff insistedupon his rights as purchaser and attached the rent decree as fraudulent, untilthe suit was brought, the landlord who had purchased the property at the rentsale could not set aside any encumbrance because there was no subsistingmortgage at that time, the mortgage having merged in the decree, and theplaintiff not having set up his rights as a mortgagee. Under the circumstances,the landlord purchaser could not proceed under section 167 of the BengalTenancy Act before the suit was instituted: and, if we give effect to thecontention of the plaintiff-appellant, and allow him to redeem the rent-decree,on the basis of his rights as mortgagee, which he set up for the first time inhis plaint in the present suit, we would virtually deprive the purchaser at therent sale of his undoubted rights to proceed under section 167 of the BengalTenancy Act, and by adopting which procedure he could have annulled theencumbrance of the plaintiff. In the circumstances of the present case, havingregard to the course adopted by him, the plaintiff ought not to be allowed, hehaving failed to get relief on the basis of his rights as a purchaser, to claimredemption on the basis of his rights as mortgagee.

4. The appeal, accordingly fails and must be dismissed withcosts.

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Kapil Rai vs. SheoBaran Rai and Ors. (03.07.1913 - CALHC)