Murlidhar vs Surat Lal Chowdhury and others

Ross, J.—The plaintiff is the purchaser of a non-transferable occupancy folding in execution of a decree on a mortgage executed in his favour by the original tenant. The defendant is the purchaser of the holding in execution of a decree for rent obtained by the landlord against the plaintiff''s mortgagor, after the mortgage-decree was passed and before it was executed. Plaintiff claims to redeem the defendant, and the question is whether he is entitled to do so. The learned District judge on appeal decided against the plaintiff''s claim and in my opinion rightly. The purchaser in execution of a rent decree purchases the holding itself and is entitled to say that he takes the holding free of encumbrance, if, in fact, there is no encumbrance valid in law outstanding against it which it is necessary for him to annul. This holding is non-transferable. The mortgage was a transfer and was therefore of no effect as against the holding or the person who purchases the holding in rent execution such a mortgage cannot effectively create a lien in limitation of the interest of the original tenant. It would operate not by force of any title to the holding created thereby but by way of estoppel. In my opinion, therefore, the holding stands free of encumbrance and the plaintiff is not entitled to redeem.

The appeal must be dismissed with costs.

Coutts, J.

I agree.