The liability of the auction purchaser to make the payment under Section 168A(1)(b) of the Bengal Tenancy Act is not affected by the fact that he has already got a decree for rent for the subsequent period.

JUDGMENT

B.K. Mukherjea, J. - This appeal is on behalf of the landlord t decree-holder and is directed against an order dated 12-7-1943 made by the Subordinate Judge, Murshidabad, dismissing the appellant's application for execution of a rent decree on the ground that it is barred u/s 168A, Bengal Tenancy Act. The facts material for our present purposes may be shortly stated as follows : The appellant instituted a suit against the respondent for recovery of arrears of rent due in respect of a darputni tenure held by the respondent under her, in the Court of the Sub-ordinate Judge of Murshidabad in the year 1937 and it was registered as Kent Suit No. 27 of 1937. The claim in the suit was for arrears of rent due from Ghaitra kist 1341 B.S. to Ashar kist 1344 B.S. Before this suit was disposed of, an-other suit was brought by the appellant against the respondent claiming rent in respect of the same tenure for a subsequent period and this suit was numbered Rent Suit No. 1 of 1940. Both the two suits were disposed of on 30-9-1940 and two decrees were passed on one and the same day. Oh 25-4-1941, the landlord decree-holder applied for execution of the decree obtained in Rent Suit No. 27 of 1937 and, in course of the execution proceedings, the darputni was put up to sale and purchased by the decree-holder on 16-6-1941. There was an application made by the judgment-debtor to set aside the sale u/s 174, Clause (3), Bengal Tenancy Act. This proceeding ended in a compromise but as the judgment-debtor failed to carry out the terms of the compromise, the application to set aside the sale was dismissed and the sale was confirmed on 22-12-1941. The decree-holder auction-purchaser took possession of the property on 8-3-1942. Thereafter, on 13-2-1943, the decree-holder filed an application for execution of the decree obtained in the other rent suit, namely, Rule Section No. 1 of 1940 and as the tenure in arrears was already sold and purchased by her she prayed for recovery of the decretal dues by attachment and sale of other Immovable properties belonging to the judgment-debtor, her case being that as the tenure in arrears was already extinguished by merger she was entitled to the benefit of the proviso attached to Section 168A(1)(a), Bengal Tenancy Act. On this application, an order for attachment was made on 16-3-1943. The judgment-debtor thereupon raised objections u/s 47, Civil P.C. The trial Court after hearing the parties allowed the objections of the judgment-debtor and held that the execution proceedings were not maintainable in view of the provisions of Section 168A(1)(b), Bengal Tenancy Act. It is the propriety of this order that has been challenged before us in this appeal.

2. The Subordinate Judge took the view that as the sale in execution of the decree in Kent Suit No. 27 of 1937 took place on 16-6-1941 after Section 168A was introduced into the Bengal Tenancy Act, it was the purchaser of the tenure at the rent sale who was liable under Clause (b) of Section 168A(1) to pay the arrears of rent which accrued due from the date of the institution of the suit down to the date of the-confirmation of the sale. The fact that the auction-purchaser was the decree-holder herself would not make any difference in the application of this provision. The position therefore was that the tenant's liability to pay rent for any period subsequent to the institution of the earlier rent suit was wiped out by the rent sale and consequently the decree for rent obtained by the landlord for any subsequent period could not be executed.

3. Dr. Pal appearing on behalf of the appellant does not dispute the correctness of the proposition of the law laid down by a Division Bench of this Court in Phani Bhusan Mukherjee Vs. Purna Chandra Bagchi and Others, AIR 1944 Cal 199 that the word "purchaser" in clause (b) of Sub-section (1) and in Sub-section (3) of Section 168A, Bengal Tenancy Act, is not limited to stranger purchasers only but in-eludes a decree-holder purch