JUDGMENT
1. The facts relevant to the decision of this case are that on the 12th January 1910 the defendant first party obtained a mortgage decree against the pro forma defendants and in execution of that decree purchased the property in dispute on the 16th July 1913, The plaintiff purchased the property at a rent sale on the 7th December 1910, and obtained possession of the property in dispute and remained in possession until he was ousted therefrom by an execution taken out by the defendant first party on the basis of the auction-purchase of 1913. The plaintiff instituted proceedings under Order XXI, Rule 100. He was defeated in these proceedings and, therefore, was driven to bring the present suit to recover possession.
2. The learned Munsif decided in his favour but the learned Subordinate Judge, on the grounds that notices were not issued under Section 167 of the Bengal Tenancy Act annulling the mortgage of the defendant and that the landlord was a party to the mortgage decree of the defendant first party, held that the landlord could not oust the mortgagee from the tenure without annulling the incumbrances and that this would be so even if the mortgagee had completed his sale before the purchase of the landlord. This decision is based on the case of Banbihari Kapur v. Khetra Pal Singh Roy 13 Ind. Cas 785 : 38 C. 923 : 16 C.W.N. 259.
3. It is urged on behalf of the appellant that the case of Banbihari Kapur is not authority for the proposition stated by the learned Subordinate Judge but is a mere obiter dictum upon the point, and it is urged further that even as an obiter dictum it has been challenged by several subsequent decisions of the Calcutta High Court, particularly in the case of Salimullah Bahadur v. Rahenuddi 30 Ind. Cas. 68 : 21 C.L.J. 659 2 C.W.N. 156 : 43 C. 263 and Kapil Rai v. Sheo Baran Rai 21 Ind. Cas. 126. Reliance is further placed on the decision in Gopi Nath Mahapatra v. Kashi Nath Beg 1 Ind. Cas. 35 : 13 C.W.N. 412, 9 C.L.J. 234. The position seems to us to be clear. Supposing that the Munsif had allowed the plaintiff’s objection under Order XXI, Rule 100, the present defendant first party would have been in the proceedings before us in the position of a plaintiff, and it is settled law, so far as this Court is concerned, by the decision Cheoditti, A.B. v. Quadress 36 Ind. Cas. 493 : 1 P.L.J. 161 by Mr. Justice Mullick upheld in Letters Patent by Chief Justice Chamier and Mr. Justice Sharfuddin, that in a suit to recover possession he could not possibly have succeeded in redeeming the mortgage by payment of the amount due under the rent decree. This decision is in accordance with the decision in Meherunnessa v. Sham Sundar Bhuiya 6 C.W.N. 834, The purchaser under the mortgage decree could not oust the purchaser under the rent decree, even though there had been no notice under Section 167. He might be regarded as a second mortgagee.
4. It seems to us entirely inequitable that the present plaintiff should be put into an unfavourable position by an erroneous summary decision of the Executing Court under Order XXI, Rule 100. Had the Munsif considered the two decisions to which we have referred, he would have seen that he could not make an order in execution ousting the plaintiff. The induction of the mortgage purchaser upon land, even though it was done by the Authority of the Court, was in fact a trespass and such a trespass could give no title. Title to the land undoubtedly lies with plaintiff as the purchaser in execution of a decree made upon a charge prior to the defendant’s charge. We, therefore, decree this appeal and order that the plaintiff be restored to the land without prejudice to any rights that may still subsist in the defendant as suggested in the cases we have quoted, namely, the right to, redeem as a second mortgagee. The appellant is entitled to his costs as against the defendant first party in all Courts. The order of the Subordinate Judge is discharged and that of the Munsif restored.