JUDGMENT

Asutosh Mookerjee, J. - These are three appeals under Clause 15 of the Letters Patent from the judgment of Mr Justice Newbould in three connected second appeals in suits for recovery of possession of land upon declaration of title. The disputed lands are comprised in a holding held by three brothers, Bhut Nath Mal, Akahay Kumar Mal and Hari Charan Mal, under one Premamayi Dasi, now deceased. On the 9th September 1901 the Mala mortgaged a portion of their holding, comprising an area of 9 bighas 9 1/4 cottahs cut of 11 bighas 18 1/2 cottahs of land, to the respondent, Parbati Charan Chiskrabarti. On the 14th September 1914 the mortgagee obtained a decree on his mortgage against the mortgagors. On the 12th May 195 the mortgagee decree- holder purchased the hypo hecated property at the execution sale which was confirmed due course on the 24th June 1915. The purchaser however, was resisted by the defendants-appellants when be attempted to take delivery of possession through the Court. This resulted in a proceeding under Order XXI, Rule 100 of the CPC which terminated against the purchaser on the 23rd September 1916. The purchaser accordingly instituted the present suits on the 26th September 1917. The defendants repelled the claim of the plaintiff on the allegation that they were lessees under a person who had purchased the entire holding of the Mals at a sale held in execution of a decree for arrears of rent. It appears that the Mals defaulted to pay rent to their superior landlord, with the result that the executor to the estate of Premamayi Dasi obtained a decree for rent against them. The holding was sold in execution on the 13th January 1904, when the landlord became the purchaser. The sale was confirmed on the 7th May 1904, and thereafter the defendants took settlement of different parcels op the 22nd November 1906, the 28th November 1906 and the 17th January 1907. The defendants pleaded in answer to the claim of the plaintiff that his title on the basis of the mortgage could not prevail against their title on the basis of the rent-decree. The Trial Court overruled this contention and decreed the suitse. On appeal the Subordinate Judge reversed the decision and dismissed the suits. On second appeal to this Court, Mr. Justice Newbould has reversed the decision of the Subordinate Judge and restored the decrees of the primary Court. On the present appeals under the Letters Patent, the opinion expressed by Mr. Justice Newbonld has been assailed as founded on an erroneous view of the relative rights of the parties.

2. The Subordinate Judge adopted the view that the effect of the sale in execution of the rent-decree was to destroy forthwith the mortgage held by the plaintiff. This was clearly erroneous. Section 159 of the Bengal Tenancy Act provides that where a tenure or holding is sold in execution of a decree for arrears due in respect thereof, the purchaser shall take subject to the interests defined as protected interests hub with power to annul the interests defined as incumbrances, with the reservat on that the power to annul shall be exercisable only in the manner directed by Chapter XIV. Section 167 prescribes the procedure to be adopted for annulling an incumbrance. A purchaser, having power to annul an incumbrance and desiring to annul the same may, within one year from the date of the sale or the date on which he first has notice of the incumbrance, whichever is later, present to the Collector an application in writing requesting him to serve on his incumbrancer a notice declaring that the incumbrance is annulled. The Collector, on receipt of the prescribed fee, shall cause the notice to be served in compliance with the application, and the incumbrance shall be deemed to be annulled from the date on which it is so served. It is consequently plain that a sals for arrears of rent does not ipso facto cancel the incumdrance, and this was ruled in Bent Prosad Sinha v. Rewat Lall 26 C. 743 : 12 Ind. Dec. (N.S.) 1165; K