The auction-purchaser is liable to pay the subsequent rent which has not been paid by the judgment-debtor, and is entitled to pay in kind for produce rent, with the money equivalent being the value of the produce when the rent accrued due.

ORDER

Henderson, J. - This is a rule calling upon opposite party 1 auction-purchaser, to show cause why he should not pay into Court the rent due for the years 1346 to 1349 B.S. under the provisions of Section 168A, Ben. Ten. Act. The decree in execution of which he purchased the holding was for rent due for the years 1344 and 1345. The execution case was held up for a long time on account of two applications to a Debt Settlement Board. The holding was eventually purchased on 5th April 1943. The sale could not be actually confirmed until 20th May 1944. By this time the rent for the years 1346 to 1350 had accrued. The auction-purchaser has in accordance with the Munsif's order deposited the rent for the year 1350 only. The petitioner then obtained this rule. During the pendency of the present execution case the petitioner instituted a suit to recover rent due for the years 1346 to 1349, as part of the claim was about to become barred by limitation. The learned Munsif held that, as the petitioner had obtained a decree for this rent, the auction-purchaser was under no obligation to make any deposit. The question is certainly not free from difficulty. The reason given by the learned Munsif was that there is nothing in the section to suggest that it prescribes a new method of execution. It is undoubtedly true that the opposite party could not possibly be made liable for the decretal amount. But this application is not a method of executing the decree against the judgment-debtor. On the other hand, the section deals with execution and curtails the methods open to the decree-holder for realising his dues. The other property of the judgment-debtor is no longer available. It is therefore perfectly reasonable that the auction-purchaser who will almost certainly have purchased the holding for a grossly inadequate sum and at any rate will be able to take this liability into consideration in making his bid, should be made to discharge the rent due for the subsequent period up to the date of the confirmation of the sale. I suppose that ultimately it will be paid by the judgment-debtor as it will have the indirect effect of reducing the bid and thereby the surplus sale proceeds. This appears to be the, clear policy underlying the Section. In my opinion the auction-purchaser is liable to pay the subsequent rent which has not in fact been paid by the judgment-debtor. It is immaterial whether the decree-holder has obtained a decree for any of it or not.

2. That is not, however, sufficient to dispose of the matter. The petitioner originally demanded that the opposite party should deposit the decretal amount. It is now conceded by Mr. Ganguly that he cannot be called upon to discharge such part of the decree as represents costs or damages. A further complication is due to the fact that the tenancy is held on a produce rent of 1 Bish and 7 Aris. If the opposite party brought a cart-load of paddy into Court the petitioner could not question that the rent is discharged; but as the opposite party does not propose to do so, the question arises on what basis the money equivalent is to be calculated. The opposite party is obviously not bound by the estimate made in the suit to which he was not a party. The question is of considerable importance here, because the years in question cover the period from normal prices to the catastrophic rise which took place in 1943 on account of the Japanese occupation of Burma and the Bengal famine. Now the auction-purchaser has broken no contract. He is in no sense a defaulter. He is not liable to pay damages to the decree-holder. It would be most unfair if he were called upon to pay the amount decreed against the judgment-debtor merely because the decree-holder delayed in bringing the suit. In my opinion in the case of a produce rent the auction-purchaser is entitled to pay in kind. If he is unwilling to do so, the money equivalent will be the value of the produce when the rent accrued due. Mr. Dutta offered to pay Rs.