JUDGMENT 1. The only question which requires consideration in this appeal is whether the decree made by the Courts below, namely, that the suit be decreed, subject to the first charge for rent in favour of the Defendant landlord, is correct. The contention of the learned vakil for the Appellant is that, inasmuch as for the rent due to the landlord a decree was obtained, and a sale took place in execution thereof, the rent charge must be taken to have been discharged, so that the Plaintiff, the mortgagee, whose encumbrance has not been annulled in accordance with the provisions of the Bengal Tenancy Act, would be entitled to sell the property mortgaged free of that charge. The raiyati holding which is the subject of this suit was sold in execution of a decree for rent and was purchased by the landlord, who commenced proceedings under sec. 167, Bengal Tenancy Act, to have this encumbrance annulled. It has been found however by both the Courts below that the notices required by that section were not duly served upon the Plaintiff. The Plaintiff's mortgage therefore still subsists, and this has been recognised by the Courts, who have allowed the Plaintiff to bring the holding to sale in satisfaction of his mortgage. But they have added this condition, that he first pays to the landlord the amount decreed on account of arrears of rent; and the only question we have to decide is whether that condition was rightly imposed. 2. Under sec. 65 of the Bengal Tenancy Act, the rent is a first charge on the holding of an occupancy-raiyat, and for the realization of this charge, the landlord is entitled to bring the holding to sale with power to avoid all incumbrances, unless it be a holding at fixed rates, and the incumbrance is a notified and registered incumbrance within the meaning of sec. 161 of the Act (see secs. 163 to 166). In the present case it has not been shown or found that the incumbrance in favour of the Plaintiff is a registered and notified encumbrance. Sec. 101 of the Transfer of Property Act provides that where the owner of a charge......on immoveable property becomes absolutely entitled to that property the charge..... shall be extinguished unless he declares by express words or necessary implication that it shall continue to subsist, or such continuance would be for his benefit. Sec. 101 of the Transfer of Property Act provides that where the owner of a charge......on immoveable property becomes absolutely entitled to that property the charge..... shall be extinguished unless he declares by express words or necessary implication that it shall continue to subsist, or such continuance would be for his benefit. In the circumstances of this case, the landlord, the owner of the charge, may be taken, when he made the purchase in execution of the rent-decree to have become absolutely entitled to the property; and it follows therefore that if the subsistence of the landlord's charge for rent would be for his benefit, that charge continues to subsist after his purchase. There, can be no question that in the present case the subsistence of the charge would be for his benefit. If it were extinguished, the landlord would lose the rent to which he is justly entitled, and it could hardly be said that when he brought the property to sale, he intended to give up his charge for the benefit of the Plaintiff, the mortgagee. The Plaintiff may well be regarded in the circumstances as a second mortgagee, the prior charge being in the Defendant. For these reasons we are of opinion that the decree made by the Court below is just and proper, the result being that the appeal is dismissed with costs.