The court emphasized the importance of interpreting the conditions of sale and the statutory charge of the corporation for consolidated rates in determining the liability of the purchaser and the rights of the mortgagee.

JUDGMENT

Lort-Williams, J. - This is an appeal against an order made by Ameer Ali, J., in a mortgage suit. The preliminary decree in the suit was made on 7th May 1930, and the Registrar reported that Rs. 5,110 odd was due to the plaintiff. In the final decree, made on 14th December 1931, it was ordered inter alia that the premises be sold; and in pursuance of these two decrees, the property was sold on 3rd February 1933, and purchased by one Haji Abdur Rahim for Rs. 6,450, The sale was subsequently confirmed, and after payment of the commission of the Registrar and the Accountant-General, there is now lying in Court standing to the credit of the suit a sum of Rs. 6,151 odd. The plaintiff's dues amount now to Rs. 6, 530 odd, and apart from his costs, which have not yet been taxed, the money in Court will not be sufficient to meet his claim, and he has given up his costs up to the preliminary decree. That being the position, the plaintiff asked for payment to him out of the sum lying in Court.

2. The purchaser, in answer to his petition, urged that there was a sum of Rs. 1,749 odd owing to the corporation of Calcutta for consolidated rates, that this sum ought to be paid out of the sum lying in Court, and the balance only be paid to the plaintiff. His contention was, that under the conditions of sale it was provided that the purchaser should not be liable to pay the outgoings previous to the date of payment of the purchase money, and that the rents and outgoings should be apportioned where necessary. This condition is usual, and is included in the form of conditions of sale in Appendix J., Form No. 1 of the Rules and Orders of the High Court on the Original Side.

3. It is not disputed that consolidated rates, and other similar Municipal rates, are included in such a term as "outgoings" when used with reference to premises such as these. But it is provided by Section 205, Calcutta Municipal Act 1923, that the consolidated rates shall, subject to certain conditions, be a first charge upon the premises, and it is contended by the plaintiff that the expression "outgoings" cannot be held to cover such a charge.

4. It should be noted in passing that the notification of sale, published by the Registrar, gave full particulars of the property to be sold, and mentioned specifically that it was subject to a lease for 25 years commencing from 1st December 1919, at a monthly rent of Rs. 30 the lessee to pay the whole of the Municipal tax. But no mention was made of this charge, or of any other encumbrance, although our rules provide, in Ch. 27, R. 9, which deals with sales by the Registrar, that where a property is to be sold subject to an encumbrance, the nature and amount of such encumbrance shall be stated.

5. Against this, the plaintiff argues that, at the sale, a representative of the corporation read out a letter, a copy of which appears at p. 10 of the Paper Book, in which the Officiating Law Officer of the corporation said:

With reference to the sale of the premises, I beg to state that the sums mentioned below are due to the corporation in respect of the consolidated rates in respect thereof. I submit that the dues of the corporation should be paid out of the proceeds of the sale of the property. I beg to notify the claim of the corporation to the intending purchasers at the time of the sale,

6. These dues included the amount of a decree with regard to which an application was being made for attachment of the premises, the amount of another decree declaring the amount to be a charge on the premises and an amount due upon certain Bustee Rate Bills. It will be noted that nothing was said in that letter about any statutory charge which the corporation had over the property in respect of rates, and although every one must be presumed to know the law, including, presumably, the Calcutta Municipal Act, no notice of this encumbrance was given either at or before the sale.

7. That being the position, Ameer Ali, J., decided in favour of the purchas