Judgement Appeal (No. 59 of 1941) from a decree of the High Court (April 11, 1940) which reversed a decree of the Court of the Subordinate Judge of Gaya (April 28, 1937). The following facts are taken from the judgment of the Judicial Committee. Respondents 2 to 11, or their pre decessors, held a permanent mukarrari interest in certain villages in the district of Gaya as tenure-holders under the Maharajadhiraja of Darbhanga, the first respondent, and herein called " the landlord." By an instrument dated June 21, 1915, that interest was mortgaged by them to the appellants, who obtained a preliminary mortgage decree for Rs.1,76,808 on August 2, 1932, and a final decree for sale on February 15, 1934. The appellants purchased the interest of the tenure-holders at the mortgage sale held on January 15, 1935, and were put in formal possession on November 7, 1935. The order confirming the sale was not before the Board, nor was its date mentioned in the order for delivery of possession, but it was said in the landlords memorandum of appeal to the High Court to have been made at some date after September 25, 1935. When the sale had been confirmed, the property passed with effect from January 15, 1935, under s. 65 of the Code. Meanwhile, in September, 1934, the landlord began pro ceedings under the Bihar and Orissa Public Demands Recovery Act, 1914, against the tenure-holders to recover arrears of rent and cesses for the years 1339 to 1341 Fasli. Those proceedings came to be numbered Certificate Case No. 1009 of 1934- 1935. On November 1, 1934, the certificate was filed by the certificate-officer and notices thereof under s. 7 of the Act were by November 27, 1934, served on all the persons named therein as debtors except one who had died, and whose heirs were not served until January 9, 1935. It would appear that in February and March the certificate was formally amended so as to substitute the names of the heirs for that of the deceased, and fresh notices were served on all the parties. In May, 1935, objection was taken to the certificate on the ground that it had included two distinct tenures as one tenure. That objection was rejected by the certificate-officer and the collector, but the matter was pending before the Commissioner when, on September 26, 1935, it was compromised. In May, 1935, objection was taken to the certificate on the ground that it had included two distinct tenures as one tenure. That objection was rejected by the certificate-officer and the collector, but the matter was pending before the Commissioner when, on September 26, 1935, it was compromised. It was agreed by all the parties to the certificate that there were two tenures ; that of the sums paid on account, Rs.948 should be credited to the first and Rs.1250 to the second; that the total amount remaining due on the first was Rs.1284, and that having been now paid, the first was wholly discharged from the debt and was no longer to be included in the certificate proceedings. The other tenure was to be put up for sale for Rs.7699. All objections regarding service of notice were waived by the certificate-debtors interested in that tenure. Thereupon the certificate-officer at first thought that a fresh certificate case should be begun; but he altered that opinion on further reflection, and on November 27, 1935, directed the issue of a notification of sale, fixing January 6, 1936, as the date of sale. That brought the appellants on the scene. On December 7, 1935, they filed a petition objecting to any sale being held on the ground that the interest of the tenure-holders had now become vested in them by the mortgage sale of January 15, 1935- They alleged that the compromise above referred to was fraudulent and collusive, and put forward technical arguments to the effect that the sale would not be a rent sale so as to pass the tenure, but would only take effect upon the right, title and interest of the certificate-debtors—an interest which no longer subsisted. That result was said to follow from the fact of the appellants purchase; also because only a part of the tenure mentioned 7 Law. Rep. 70 Ind. App. 73 ( 1942- 1943) Ishwari Prasad Singh v. Honourable Maharajadhiraj 19 in the certificate was being sold, and because one or more of the original certificate-debtors had died before the original certificate was filed. Those objections were answered in a " report " made by the manager of the Darbhanga estate, who contended that the appellants, having purchased the tenure, were bound to pay the arrears of rent thereon, which were a first charge on the tenure. Those objections were answered in a " report " made by the manager of the Darbhanga estate, who contended that the appellants, having purchased the tenure, were bound to pay the arrears of rent thereon, which were a first charge on the tenure. The certificate-officer on December 14, 1935, dismissed the objection petition, but on December 18 the appellants presented another petition asking for a review of the order of the 14th, insisting that service of the notice of the certificate was made on some of the certificate-debtors after January 15, 1935, the date of the mortgage sale; and that the compromise had split up the tenure ; hence that the certificate could not operate as a rent decree. That petition was not included in the record before the Board, but was mentioned in the order sheet of the certificate proceedings. In the plaint it was called a M petition to review." On December 18 the certificate-officer recorded an order on that petition " Let the decree-" holder satisfy me on the points raised by the applicants, "because these points should be determined at the very out-"set." He appointed January 4, 1936, to go into the matter, and on that date adjourned it till January 6 for want of time. Meanwhile the present suit had been filed in the Court of the Subordinate Judge at Gaya on January 2, 1936, and a temporary injunction obtained ex parte on January 3 restraining the first respondent from proceeding with the sale. That was continued until the trial, after hearing both sides on January 24, 1936. At the trial a decree was passed, dated April 28, 1937, granting an injunction in the following terms "Defendant No. 1 is hereby directed not to get the properties "in suit sold in the Certificate Case No. 1009 of 1934- 1935." That was the only relief granted or direction given by the decree, save for certain directions as to costs. The Subordinate Judge held that the compromise of September 26, 1935, was not fraudulent, and that the sale proceedings thereafter were restricted to the lands of one tenure only. He found that there was nothing in the objection that all the tenure-holders had not been made parties to the certificate or served with notice of it. The Subordinate Judge held that the compromise of September 26, 1935, was not fraudulent, and that the sale proceedings thereafter were restricted to the lands of one tenure only. He found that there was nothing in the objection that all the tenure-holders had not been made parties to the certificate or served with notice of it. But he held that by November, 1935, and long before January 6, 1936, the date fixed for the sale by the certificate-officers order of November 27, 1935, the landlord had knowledge of the appellants purchase ; that the relationship of landlord and tenant no longer subsisted between the certificate-holder and certificate-debtors; and that a sale under such a certificate would not be a rent sale and would not pass the tenure, but only the right, title and interest of the certificate-debtors, which was nothing. He considered that as the compromise of September, 1935, had made changes in the claim and in the lands, fresh notices under s. 7 of the Act should have been issued to comply with s. 11 of the Act of 1914, and that the certificate proceedings should have been begun afresh. On appeal the High Court (Wort and Dhavle JJ.) set aside that decree and dismissed the suit. They held that notices of the certificate had been servedby January 9, 1935, under s. 7 of the Act, and that the charge declared by s. 8 took effect on that date on the tenure and subsisted throughout. As the purchase of the appellants at the mortgage sale did not take place till January 15, 1935, the High Court held that the sale, if held, would have the effect of a rent sale. Wort J., with whose judgment Dhavle J. agreed, dealt with certain other aspects of the matter, but the decision was based on s. 8 of the Act. By the Bihar and Orissa Public Demands Recovery Act, 1914 "7. When a certificate has been filed in the office of a "certificate-officer under s. 4 or s. 6, he shall cause to be "served upon the certificate-debtor, in the prescribed manner, "a notice in the prescribed form and a copy of the certificate." "8. By the Bihar and Orissa Public Demands Recovery Act, 1914 "7. When a certificate has been filed in the office of a "certificate-officer under s. 4 or s. 6, he shall cause to be "served upon the certificate-debtor, in the prescribed manner, "a notice in the prescribed form and a copy of the certificate." "8. From and after the service of notice of any certificate "under s. 7 upon a certificate-debtor,—(a) any private transfer "or delivery of any of his immovable property situated in "the district, or, in the case of a revenue-paying estate, borne "on the revenue-roll of the district in which the certificate "is 7 Law. Rep. 70 Ind. App. 73 ( 1942- 1943) Ishwari Prasad Singh v. Honourable Maharajadhiraj 20 filed, or of any interest in any such property, shall be void "against any claim enforceable in execution of the certificate ; "and (b) the amount due from time to time in respect of the "certificate shall be a charge upon such property, to which "every other charge created subsequently to the service of "the said notice shall be postponed." " ii. Subject to the law of limitation, the certificate-officer "may at any time amend a certificate by the addition, "omission or substitution of the name of any certificate-" holder or certificate-debtor, or by the alteration of the amount "claimed therein Provided that when any such amendment "is made a fresh notice and copy shall be issued as provided "in s. 7." , "24. Where the certificate-officer is satisfied that the " property was, at the said date [sc. the date of service of notice "of the certificate], in the possession of the certificate-debtor "as his own property and not on account of any other person, "or was in the possession of some other person in trust for "him, or in the occupancy of a tenant or other person paying "rent to him, the certificate-officer shall disallow the claim.” "25. Where a claim or an objection is preferred, the party "against whom an order is made may institute a suit in a "civil court to establish the right which he claims to the "property in dispute ; but, subject to the result of such suit " (if any), the order shall be conclusive." " 26. Where a claim or an objection is preferred, the party "against whom an order is made may institute a suit in a "civil court to establish the right which he claims to the "property in dispute ; but, subject to the result of such suit " (if any), the order shall be conclusive." " 26. (1.) Where property is sold in execution of a certificate "there shall vest in the purchaser merely the right, title and "interest of the certificate-debtor at the time of the sale, "even though the property itself be specified. (3.) Notwithstanding anything contained in sub-s. 1, in areas in which u Chapter XIV. of the Bengal Tenancy Act, 1885, or " Chapter XVI. of the Orissa Tenancy Act, 1913, is in force, "where a tenure or holding is sold in execution of a certificate "for arrears of rent due in respect thereof, the tenure or "holding shall, subject to the provisions of s. 22 and "s. 26 of the said Acts, respectively, pass to the purchaser, "subject to the interests defined in the said chapters as pro-"tected interests, but with power to annul the interests " defined in the said chapters as * incumbrances . . . ." By ss. 65 and 158B of the Bihar Tenancy Act, 1885 "65. Where a tenant is a permanent tenure-holder .... "he shall not be liable to ejectment for arrears of rent, but his "tenure .... shall be liable to sale in execution of a decree "for the rent thereof, and the rent shall be a first charge "thereon . . . ." "158B. (1.) Where a tenure .... is sold in execution "of .... (c) a certificate for arrears of rent signed under "the Bihar and Orissa Public Demands Recovery Act, 1914, "the tenure .... shall .... pass to the purchaser .... "if such certificate was signed on the requisition of or in "favour of, a sole landlord . . . ." 1943. Jan. 27, 28. Rewcastle K.C. and R. K. Handoo for the appellants. The High Court decision is on the basis that there is something in s. 8 of the Public Demands Recovery Act which places on the property from the date of the original service of the certificate proceedings a charge which prevents the appellants from realizing their rights. It is submitted that that is wrong. The High Court decision is on the basis that there is something in s. 8 of the Public Demands Recovery Act which places on the property from the date of the original service of the certificate proceedings a charge which prevents the appellants from realizing their rights. It is submitted that that is wrong. The appellants had a right to start these proceedings by intervening in the certificate proceedings; they had their mortgage and their decree, and the property was sold by the court and they became the purchasers. That has nothing to do with s. 8 ; it was not a " private transfer," and it was unaffected by any charge under sub-cl. (b) of s. 8. Sect. 8 is only intended to prevent interference by certificate-debtors with- the property so as to defeat the landlords right to his rent; it does not refer to anything except acts done by the 7 Law. Rep. 70 Ind. App. 73 ( 1942- 1943) Ishwari Prasad Singh v. Honourable Maharajadhiraj 21 certificate-debtors after service on them of the notice of the certificate. It creates a charge on the property to which any charge created subsequently shall be postponed. The appellants are not concerned with charges at all; after they had bought the land the tenants had no interest in it whatever. Therefore, if there had been a sale in the certificate proceedings it could not have been a sale of the tenants interest because at that time there was no interest in them— it had passed to the appellants. That being the position, the appellants make an objection under s. 21 of the Act to the sale of this property on the ground that it belongs to them ; they ask for a declaration that they are the owners of the land, and it is submitted that they are entitled to do so. Sir Herbert Cunliffe K.C. and Wallach for the landlord, respondent No. 1. This action was rightly dismissed by the High Court. The proceedings which this respondent took have been regular—proper persons have been served, proper notices given, and at the proper time. The respondent is entitled to a charge on the property. Sir Herbert Cunliffe K.C. and Wallach for the landlord, respondent No. 1. This action was rightly dismissed by the High Court. The proceedings which this respondent took have been regular—proper persons have been served, proper notices given, and at the proper time. The respondent is entitled to a charge on the property. Any attempt to prevent him selling should not succeed, and cannot be made by someone whose title to the property did not come into existence until some days after the respondents rights had accrued, that is, not only his right to the charge, but to carry out that charge and to prevent any transfer of the property. The appellants have brought a wrong proceeding. The respondent will sell the tenants rights, whatever they may be. The respondents right does not merely rest on s. 8 of the Public Demands Recovery Act, however, for he founds himself in the first place on s. 65 of the Bihar Tenancy Act, 1885, as amended to 1937, which gives him a first charge for arrears of rent. The appellants, as mortgagees, could get no right that the mortgagors had not got, and nothing that the tenure-holders or anybody claiming title through them can do can dispossess the respondents right to a first charge on the tenure. The mortgagees simply step into the shoes of the mortgagors who are subject to the directions which have been given by the certificate authorities, and they are subject to the consequences of the order which has been made, and duly served, before they effected their purchase. They have not affected the respondents right in the slightest degree, and have no right to ask the court to stop these perfectly regular certificate proceedings. The only thing that the mortgagee-purchasers could do would be to have asked the court to stay the pro ceedings because they were prepared to pay principal, interest and costs. This is an attempt to squeeze the respondent out of his first charge, and it is submitted that before the appellants can stop the proceedings the respondent is entitled to have provision made for his charge—that is really all he seeks. Rewcastle K.C. replied. Feb. 25. This is an attempt to squeeze the respondent out of his first charge, and it is submitted that before the appellants can stop the proceedings the respondent is entitled to have provision made for his charge—that is really all he seeks. Rewcastle K.C. replied. Feb. 25. The judgment of their Lordships was delivered by Sir George Rankin, who stated the fact above set out, and continued Their Lordships are not of opinion that the ratio decidendi of the High Court in the present case can he sustained. Sect. 8 of the Act of 1914 is not directed to the particular case of a claim for arrears of rent, but is a general provision intended to apply to any case in which a public demand i» being enforced. It applies to a public demand which is not secured upon any property, and it affects all the debtors immovable property in the district. Its effect is not that the debt shall be recoverable out of property which is not the property of the debtor, e.g., at the expense of another person entitled to the interest of a mortgagee in the debtors land, but merely to prevent recovery of the debt out of the debtors land being defeated by any private transfer or delivery made, or by any charge created, after notice of the certificate has been given to the debtor i The charge conferred by cl. (b) of s. 8 cannot of its own force take precedence of a previous mortgage, or interfere with the remedy of the mortgagee, or impair the title acquired by the auction purchaser at a mortgage sale even if the sale be held after service of the notice under s. 7 of the Act. On the contrary, under s. 26, sub-s. 1, a sale under the certificate vests in the purchaser only the right, title and interest of the certificate-debtor at the time of sale. Sect. 8 is no answer to the appellants. The case which they have to meet arises out of a very different charge—that declared by s. 65 of the Tenancy Act and ordinarily enforceable by the procedure and on the terms indicated in ch. XIV. of 7 Law. Rep. 70 Ind. App. 73 ( 1942- 1943) Ishwari Prasad Singh v. Honourable Maharajadhiraj 22 that statute. The case which they have to meet arises out of a very different charge—that declared by s. 65 of the Tenancy Act and ordinarily enforceable by the procedure and on the terms indicated in ch. XIV. of 7 Law. Rep. 70 Ind. App. 73 ( 1942- 1943) Ishwari Prasad Singh v. Honourable Maharajadhiraj 22 that statute. It depends on the effect to be given to the provision in sub-s. 3 of s. 26 of the Act of 1914, that in certain circumstances under this certificate procedure the tenure or holding shall pass to the purchaser. This sub-section must be read with s. 24, which makes the date of service of the notice of the certificate .the crucial date for the purpose of disposing of a claim or objection preferred under s. 21. The appellants objection petition of December 6, 1935, was, in their Lordships view, a matter to be decided by the certificate-officer under ss. 21 to 25 of the Act. At first, and apparently by some misunderstanding, he had rejected it without calling for a reply from them, but the appellants had filed a petition for review of that order, and on December 18, 1935, he had recorded an order requiring the landlord to satisfy him on the matter, saying " these points should be determined at the very outset." He had adjourned the matter till January 4, 1936, yet on January 2 the plaint was issued, and on January 3 his hands were tied by an ex parte injunction. This was continued until it was dissolved by the High Courts decree of, April 11, 1940, the certificate pro ceedings being thus held up for more than four years in order t prevent the certificate-officer from determining the matter as his duty was. The learned Subordinate Judge, when the right of the civil court to interfere with the certificate proceedings was challenged, relied on the terms of ss. 21 to 25 of the Act. These sections repeat provisions of the Civil Procedure Code (Or. xxi., ss. 58-63), which do not have effect under ch. XIV. of the Tenancy Act (cf. s. 170). After December 18, 1935, the objection petition was still before the certificate-officer for his final decision; but, if his previous order be taken as his decision, then it becomes important to observe that the terms of s. 25 of the Act of 1914, like those of Or. XIV. of the Tenancy Act (cf. s. 170). After December 18, 1935, the objection petition was still before the certificate-officer for his final decision; but, if his previous order be taken as his decision, then it becomes important to observe that the terms of s. 25 of the Act of 1914, like those of Or. xxi., r. 63, of the Code, are intended to enable the execution proceedings to continue notwithstanding the claim or objection which has been dismissed. Subject to the result of the suit, the order is to be conclusive. That on a claim being rejected the execution proceedings should be held up— it may be, as in this case, for years—till the suit can be decided is contrary to the main purpose of the procedure laid down by the Act and by the Code. As a general practice it would be intolerable* and in the particular case before the learned Subordinate Judge such a course had almost nothing in its favour. The appellants had purchased the tenure, and the only question was whether a certificate against the original tenure-holders was available to the landlord having regard to the date of service of notice and the date of the appellants purchase. If it was not available, the sale when held would not affect the appellants interest. Before their Lordships it was not contended that the purchaser of a tenure had a right to hold it free from the landlords claim for arrears of rent existing at the date of the purchase. The landlord, by s. 65 of the Tenancy Act, has a first charge for the rent; and though it is very important to recognize that he must take the appropriate steps to get the benefit of such a charge, and that for this purpose a mortgagee and a purchaser are in different positions (cf. Bidhumuki Dasi v. Bhaba Sundari Dasi (( 1920) 24 C. W. N. 961.), Jogendra Chandra Das v. Debendra Nath Ghosh (( 1934) 39 C. W. N. 428.), the irregularity and inconvenience of staying the landlords proceedings in the present case are none the less manifest. Their Lordships are of opinion that the suit was premature, the appellants claim being under consideration by the certificate-officer at their instance when they filed their plaint. They think it clear that the temporary and permanent injunctions were improperly granted. Their Lordships are of opinion that the suit was premature, the appellants claim being under consideration by the certificate-officer at their instance when they filed their plaint. They think it clear that the temporary and permanent injunctions were improperly granted. It seems doubtful whether, after so long an interval, the certificate proceedings can usefully be revived, but their Lordships think it right to say that if they are revived as against the tenure the certificate-officer should begin afresh, or else by amending the certificate so that it may correspond to the present facts as regards lands, parties and otherwise. The consequences to the landlord may be unfortunate, but they flow from the fact that his tackle was not in order originally. Their Lordships will humbly advise His Majesty that this appeal should be dismissed. But they direct that if the appellants within two months from the receipt by the High Court at Patna of the Order in 7 Law. Rep. 70 Ind. App. 73 ( 1942- 1943) Ishwari Prasad Singh v. Honourable Maharajadhiraj 23 Council to be made on this appeal shall pay into the trial court the sum of Rs.7699-5-1 (if not already paid) mentioned in the compromise petition of September 26, 1935, without interest, so as to be available for withdrawal by the first respondent on the terms that the appellants interest in the tenures mentioned in the certificate proceedings in the plaint mentioned shall be held free from all claim by the first respondent in respect of the arrears of rent covered by the said proceedings, then the order of the High Court as to costs shall be discharged and each party left to bear its own costs incurred in the courts in India. If the appellants do not make payment into court as aforesaid the directions of the High Court as to costs shall stand. The appellants will pay the first respondents costs of this appeal.