- (1.) THIS appeal has arisen out of an application under section 47 of the Code of Civil Procedure. The facts which have led up to the present appeal are not in dispute. The Corporation of Calcutta obtained a charged decree in respect of some premises against the Bank of Calcutta Ltd. , now in liquidation, and six other persons, who all bear the surname 'roy. ' A decree was passed in a preliminary form declaring the change of the Corporation of Calcutta on 1st September, 1948. This decree was made final on 12th March, 1949. Between the date of the preliminary decree and the date of the final decree, one Gobinda Singh, who had died since and who was a predecessor in. interest of the appellant Ramgopal Singh, auction-purchased the premises in question on 13th December, 1948. This purchase was made at a sale which was held at the instance of the Corporation of Calcutta for realising its dues on account of rates ana taxes for a prior period. The present execution case was started on 14th August, 1950 against the original judgment-dectors as also against Gobinda Singh, who was made a party on account of his auction purchase already mentioned. An objection was filed on behalf of Gobinda Singh that he is not liable for the dues of the charge decree for several reasons. Gobinda Singh died during the pendency of the case in the courts below and his heirs were substituted. The present appellant, Ramgopal Singh, is a son and heir of Gobinda Singh. As the objections of Gobinda Singh were dismissed by the courts below this second appeal has been preferred by his son Ramgopal Singh.
(2.) MR. Ghosh appearing on behalf of the appellant submitted two principal points for my consideration. He urged in the first place that Gobinda Singh, deceased father of the appellant, had purchased the disputed premises after the passing of the preliminary decree but before the passing of the final decree and as he was not made a party to the final decree it is not executable against him or his successor-in-interest. In my opinion, this contention cannot be given effect to for two-fold reasons. In the first place Order 34 of the Code of Civil Procedure contemplates that those persons, who have acquired any interest in a mortgage suit, should be made parties. In the present case Gobinda Singh acquired his interest not only after the date of the institution of the charge suit filed by the Corporation of Calcutta but after the passing of the preliminary decree. Under those circumstances he was neither a necessary nor a- proper party to the charge suit. T. tien again the purchase was made when the lis had not yet concluded and no final decree had been passed. That being so, the principles of the doctrine of lis pendens would apply to the present case and Gobinda Singh and his successor would be bound by the charge decree although they were not made parties in the final decree. The first contention raised on behalf of the appellant, therefore fails.
(3.) MR. Ghose next submitted on behalf of the appellant that in any event Gobinda Singh and his heirs are liable only for taxes and rates of one year immediately preceding the purchase of Gobinda Singh as laid down under section 200 of the Calcutta Municipal Act, 1923. Mr. Ghosh contended that under that section a purchaser cannot be made liable for taxes and rates for any period exceeding one year prior to the date of the purchase. This contention of Mr. Ghosh would have been upheld by me if the Corporation had sought to realise taxes and rates from Gobinda Singh or his heirs for more than one year prior to the date of Gobinda Singh's purchase by issuing a distress warrant. Apparently section 200 of the Calcutta Municipal Act, 1923 contemplates the personal liability of a purchaser. The liability of the premises is laid down in section 205. Under that section the consolidated rate due from any person in respect of any land or building shall, subject to the prior payment of the land revenue due to the Government thereupon, be a first charge upon the said land or building. That being the case, the dues under the charge decree would be a first charge upon the disputed premises although that decree was obtained for taxes and rates for a period of more than one year prior to the date of Gobinda Singh's purchase. In these circumstances the Corporation of Calcutta is entitled to execute the entire charge decree against the disputed premises and to realise the decretal amount by putting the premises to auction sale. The second contention urged by Mr. Ghosh on behalf of the appellant, therefore, fails. Both the contentions raised on behalf of the appellant having failed this appeal is dismissed with costs to respondent No. 1 hearing fee being assessed at two gold mohurs.;