Chatterji, J - (1.) The question for determination in this appeal is whether a landlord, who purchases a tenure in execution of a money decree obtained by him in a suit for recovery of arrears of rent of the tenure, takes the tenure subject to the liability for the arrears of rent accruing due between the date of the suit and the date of the sale though such liability may not have been notified in the sale proclamation. The facts of this case are these : The appellant who is the landlord of a tenure obtained on 5 August 1933 a money decree in a suit for recovery of arrears of rent of the tenure for the period 1336 to 1339 under the provisions of the Chota Nagpur Tenancy Act. In 1937 the landlord again brought a suit for arrears of rent of the tenure for 1340 to 1343. In this also a money decree was passed on 14 th September 1937, as some of the defendants were not served with summons. During the pendency of this second suit, the landlord took out execution of the money decree dated 5 August 1933 and asked for sale of the tenure. The sale of the tenure was ordered and the sale proclamation was issued while the second suit was still pending. The sale took place on 15 November 1937 when the second suit had already been disposed of. At this sale the landlord became the purchaser of the tenure. In 1940 the landlord took out execution, of the second money decree dated 14 September 1937 and prayed for attachment and sale of some other properties of the judgment-debtors. The judgment-debtors filed objection under Section 47, Civil P. C, contending that the landlord, having purchased the tenure in execution of a money decree, took it subject to the liability for the arrears of rent of the tenure for the period anterior to the sale, and, therefore, the decree under execution was discharged when the purchase was made by him.
(2.) The Munsif allowed the judgment-debtors objection, and on appeal his decision has been affirmed by the Judicial Commissioner. The decree-holder has, therefore, preferred this appeal. The contention raised by Mr. J. M. Ghosh for the appellant is that though, according to Section 60, Chota Nagpur Tenancy Act, the rent was a first charge on the tenure, the landlord was under no obligation to treat it as a first charge, when suing for arrears, and that the second decree obtained by him being in fact a money decree, he was at liberty to execute this decree by attachment and sale of other properties of the judgment-debtors. In support of this contention reliance has been placed on the following observation of Mookerjee J. in Sailaja Prasad V/s. Gyani Das (13) 18 C. L. J. 29: It may be conceded, as was pointed out by this Court in Fotick Chunder Dey V/s. Foley (88) 15 Cal. 492 and Sourendra Mohan Tagore V/s. Surnomoyi (99) 26 Cal. 103 that a decree-holder who has obtained a decree for rent is free to proceed against any property of the judgment- debtor; he is under no obligation to proceed in the first instance against the defaulting tenure.
(3.) But the real question that arises in the present case is not whether the landlord can execute the second money decree against other properties of the judgment-debtors, but whether the effect of the purchase of the tenure by him in execution of the first money decree. Section 60, Chota Nagpur Tenancy Act runs as follows: The rent of a tenancy shall be a first charge on the tenancy: Provided that, if a tenancy is sold in execution of a decree for, arrears of rent, the purchaser shall acquire the tenancy free of all liability for rent for any period prior to the date of the sale, and rent due for any such period shall be a first charge on the sale-proceeds of the tenancy.;