Patna High Court
Jugal Kishore Narayan Singh And Ors. vs Bhatu Modi And Ors. on 2 May, 1923
Equivalent citations: 80IND. CAS.377, AIR 1923 PATNA 517
JUDGMENT B.K. Mullick, J.
1. This case illustrates the difficulties which arise when in execution of a decree for arrears of rent the Court sells the holding subject to a liability for the arrears of years other than those in suit. The matter was considered in this Court in Saiyid Muhammad Jawad Hussain v. Maharaja Kumar Gopal Narain Singh 80 Ind. Cas. 223 : 2 P.L.T. 248 and it would seem that here the irregularity has resulted in a loss against which the judgment-debtor can get no relief.
2. The facts are that on the 30th July 1910 the landlord obtained a rent decree, against the tenant for the years 1314, 1315 and 1316 F.S. for a sum of Rs. 641-11-0. He brought a second suit for the years 1317 to 1320 which was decreed on the 29th August 1914 for a sum of Rs. 935-13-0. In execution of the first decree he then brought the holding to sale in May 1915 and it must now be taken as established that it was sold subject to a liability to satisfy the second decree. The landlord then instituted execution case No. 23 of 1921 for the realisation of the second decree and asked for the attachment of properties other than the holding but the Subordinate Judge by his order dated the 20th December 1921 held that as the decree-holder was himself the auction-purchaser and had bought the holding subject to the liability to satisfy the second decree the debt was satisfied and the execution could not proceed.
3. In appeal the learned District Judge held on the 29th August 1922 that there was an equitable estoppel in the case and that the proper course was for the deree-holder to sell the holding first and then if the decree remained unsatisfied to proceed against the other properties of the judgment-debtor.
4. The present second appeal is filed against the District Judge's order.
5. Now 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 can not ordinarily be again sold in execution of any other decree for rent due by the same tenant. An exception, however, has been made in cases where the execution Court, though irregularly, allows the holding to be Sold subject to a liability to satisfy another outstanding decree; in such cases the auction-purchaser is concluded by res-judicata and the landlord is competent to proceed in the first instance against the holding and to call upon the auction-purchaser to discharge the liability which he has undertaken. That was the principle of the decision in Haradhan Chatteraj v. Kartik Chandra 6 C.W.N. 877, on which the respondent now relies; but that case has no application at all where the decree-holder is himself the purchaser. I take it that the judgment-debtor could not have resisted the attachment of other properties if after the sale the decree-holder had changed his mind and declined to proceed against the auction-purchaser. The law gives the decree-bolder an option and I cannot see how any estoppel arises. But it is contended that there was some representation by the decree-holder by reason of which the tenant was induced to change his position. Now the representation must be a statement of fact and not of a proposition of law, and it is clear that the decree holder has said nothing which he now desires to repudiate. If the representation was that there was a second decree outstanding then there was nothing incorrect in that statement and no question of a change of position by reason of such a representation can arise. If the representation was that the property was in law liable to be again sold in execution of the second decree that was a statement of a proposition of law and cannot raise an estoppel, and even if the decree-holder had gone so far as to represent that he would not execute the second decree at all except by the sale of the holding (which is not found in this case) the decree-holder would not be estopped by the mere expression of such an intention. It is said that the judgment-debtor might, if he had been aware that the decree-holder would exercise his option as against the other properties, have applied to get the sale set aside under Order XXI, Rule 89 Civil Procedure Code. The reply is that the decree-holder has no responsibilty in the matter. It may be that the judgment-debtor has been beguiled into a sense of security, but after all that is his own fault. He should have objected at the outset to the irregular sale and not having done so he must suffer the consequences.
6. The result is that the appeal will be decreed with costs in this Court and the Courts below.
Macpherson, J.
7. I agree.