The Judgment of the Court was delivered by

Deo, J.:— This appeal and Letters Patent Appeal No. 6 of 1946 were placed before this Full Bench for disposal because of a conflict between a Division Bench decision in ‘Zalliram v. Man Galsingh’ (1939) Nag. LJ. 477 and the decision of Subhedar A.J.C in ‘Manrakhanlal v. Permanand’, AIR 1935 Nag 185. This judgment will dispose of both the appeals. The facts are: In execution of the final decree for sale obtained on 8th July 1932, on a mortgage executed by defendant No. 2 of his 0-1-4 share in mouza Chuchrel in Harsud tahsil, the plaintiff mortgagee purchased that share on 24th April 1939. This sale was confirmed on 7th June 1939 and the possession was delivered on 18th June 1939.

2. The defendant No. 3, lambardar, paid the land revenue due on the 0-2-8 share held by defendant No. 2 and on 13th February 1937 made an application under section 157 of the Central Provinces Land Revenue Act for recovery of Rs. 290-8-4 inclusive of costs. In these proceedings, the 0-2-8 share was sold on 21st November 1938 and was purchased by defendant No. 1. The sale was confirmed on 9th January 1939. According to the plaintiff, defendant No. 1 obtained possession of only 0-1-4 share on 12th July 1939 while according to the defendants he obtained possession of 0-2-8 share and the appurtenant fields. Plaintiff had instituted this suit for possession of his 0-1-4 share on redemption of the charge existing in favour of defendant No. 1 over 0-1-4 share on payment of the proportionate amount of land revenue due on that share. The trial Court held that the plaintiff must redeem the entire charge and accordingly passed a decree for redemption of 0-2-8 share and its possession on such payment. The lower appellate Court confirmed this decree. In second appeal the plaintiff was held entitled to redeem only 0-1-4 share on payment of half the amount decreed by the trial Court. ‘The pltff. has filed Letters Patent Appeal No. 5 of 1946 claiming redemption and possession of 0-2-8 share, while defendants 1 and 3 have filed Letters Patent Appeal No. 6 of 1948 claiming dismissal of the suit on the ground that the sale under Section 157 of the Land Revenue Act being free from encumbrance the plaintiff did not acquire any title by his auction-purchase. Alternatively it was contended that the defendant No. 1 is entitled to redeem the plaintiff.

3. On 27th August 1938, the Deputy Commissioner ordered the sale of 0-2-8 share under Section 128(f) of the Land Revenue Act. Accordingly a proclamation was issued in form No. 9 which recited that

“subject to the provisions of section 138 of the Central Provinces Land Revenue Act the purchaser of the said share shall acquire it free of any encumbrances imposed on it and all grants or contracts made in respect of it by any person other than the purchaser”.

4. However, the sale was held which according to the plaintiff, means “subject to the mortgage”, and according to the defendants, free from mortgage encumbrance”. It is not necessary for the purpose of this appeal to resolve this controversy in the view we are taking that even if the property was in fact sold free from the mortgage encumbrance, the defendant No. 1 does not in law get a title free from encumbrance.

5. Under Section 122(1) of the Land Revenue Act the revenue assessed on a mahal and payable to the State is a first charge on the mahal and on the rents and profits thereof. Such revenue is called Land Revenue. It is not disputed that this is a charge “created by operation of law” within the meaning of Section 100 of the Transfer of Property Act. Under Section 123, all land revenue payable under the Act has to be paid through the sadar lambardar, lambardar, or the patel as the case may be. Under Section 82, the assessment is offered in the case of a mahal to the proprietor, or if there are two or more proprietors, to the lambardar if for special reasons the Settlement Officer so decides.

6. If the assessment is accepted, it is reduced to writing under Section 85, sub-section (2), and under Section 88(1) on such acceptance the proprietors are bound to pay land revenue assessed thereupon until a, new assessment has been made and is ready to take effect. Thus the defendants 2 and 3 were jointly and severally liable to the Crown for payment of the land revenue due on the mahal. Under section 188(1), it is the duty of the lambardar to collect and pay the land revenue to Government treasury. Defendant No. 3 accordingly paid the land revenue of the mahal to Government and became entitled to receive from defendant No. 2 the amount payable in respect of his 0-2-8 share. By such payment he acquired a charge on this share. ‘Gulab v. Bindraban’, ILR (1941) Nag 474.

7. A lambardar making such payment has three remedies available to him: (a) to institute a suit to enforce the charge in the manner provided, by Order 34 of the CPC, for a suit on a simple mortgage, (a) to institute a suit under section 69 of the Contract Act for contribution treating it as a money debt, and (c) to resort to the summary proceeding for recovery provided by Section 157 of the Land Revenue Act.

8. Under section 9 (now repealed) of the Central Provinces Tenancy Act the rent of an absolute occupancy holding was a first charge on that holding, and not withstanding anything contained in section 100 of the Transfer of Property Act or Order 34 of the First Schedule to the CPC, such holding was liable to sale for the satisfaction of such charge in execution of a decree for rent against the tenant, whether such decree orders such sale or not. It was therefore not necessary to bring a suit to enforce the charge and comply with the provision of Order 34, Rule 1; and a transferee from the tenant could not invoke the equitable doctrine of notice available under Section 100 of the Transfer of Property Act. The section thus provided that so long as any rent remains unpaid the landlord has a right to realize the rent due by sale of the holding, in preference to any other creditor, secured, or unsecured and that right is not affected by any sale or transfer of the holding.

9. The contention that a sale by landlord under this section confers on the purchaser a title free, of encumbrance was negatived in ‘Ganba v. Ganpatrao’ ILR. (1937) Nag. 498, Bhikulal v. Bhaiyalal’ ILR (1940) Nag 522 because there is no provision in the Tenancy Act analogous to Section 138(1) of the Land Revenue Act and it was held that the object of section 9 is to give the landlord precedence for his rent, and that object is completely attained the moment the holding is sold in the manner specified in the section, or the landlord's liability is otherwise satisfied. The first charge created by the section, enures no further than that. A subsequent mortgagee who pays the rent to save his security is not therefore, entitled to be subrogated to the rights of the landlord and cannot call upon the prior mortgagee to redeem the charge before he is given a decree on his mortgage: ‘Sitaram v. Krishnarao’ ILR. (1941) Nag. 607.

10. In a suit to enforce the first charge all persons who have an interest in the property or any right to redeem the charge are necessary parties under Order 34, Rule 1 of the CPC, so that all such persons can have their claims adjudicated in that suit; and the holding then sold would be sold free of encumbrance. ‘Gunesh v. Ghasitilal’ AIR. 1917 Nag. 142. It is a fundamental principle of law that the rights of a party cannot be prejudiced by proceedings to which he is not a party. In order that the purchaser in execution of a charge decree should get the property free of encumbrance it is necessary that all persons who have a right to pay off that charge should be joined as parties and their rights concluded. If the charge-holder does not wish to pursue this elaborate remedy, he can recover the amount by a suit under section 69 of the Contract Act, ‘Shrivallabh v. Laxman’, ILR (1946) Nag 469 at p. 473 or he can recover it without a suit by summary proceedings under Section 157 of the Land Revenue Act.

11. In ‘Laxman v. Madho Prasad’, ILR (1942) Nag. 701 subsequent to the plaintiff's mortgage, the landlord obtained a decree for arrears of land revenue due on the mortgaged ‘malik makbuza’ field without impleading the mortgagee, purchased the field himself and obtained possession. In a suit by the mortgagee, he claimed that he acquired the land free of the mortgage encumbrance. Relying on ‘Zalliram v. Mangalsingh’, (1939) Nag LJ 477 it was held that the lambardar had priority over the mortgagee only to the extent of land revenue paid by him and the mortgagee could enforce his mortgage on payment of this amount. Shri Bobde appearing for defendants 1 and 3 disputes the correctness of the decision in ‘Zalliram v. Mangalsingh’ 1939 Nag. L.R 477. There the mortgagee had obtained a final decree on his mortgage. Thereafter the lambardar having paid the land revenue due on the patti of the mortgagor, sold that patti in proceedings under Section 157 of the Land Revenue Act.

12. The contention of the purchaser that he acquired the patti free of encumbrances in view of Section 138(1) of the Land Revenue Act was negatived. This decision was followed in all the subsequent decisions of this Court on this point. See ‘Gulab v. Bindraban’ (Supra) ILR. (1941) Nag. 474 ‘Laxman v. Madho Prasad’ (Supra) and ‘Ratansingh v. Raghuraj Singh’, ILR (1945) Nag. 975 at p. 985. Shri Bobde brought to our notice two earlier decisions in which a contrary view is taken and which were evidently not brought to the notice of the Division Bench deciding ‘Zalli Ram's’ case. They are ‘Nanhusao v. Nandlal’ 18 Nag. L.J 185 which is a decision of the Revenue Member and ‘Manrakhan Lal v. Permanand’ AIR 1935 Nag. 185 which is a decision of a single Judge of the late Judicial Commissioner's Court.

13. Under Section 128(f) of the Act, an arrear of land revenue payable to Government may be recovered by selling the estate, mahal or land, or the share or land, in respect of which the arrear has, accrued, of any co-sharer who has not paid the portion of land revenue which as between him and the other co-sharers is payable by him; and under Section 138(1) unless the Deputy Commissioner in ordering the sale otherwise directs the purchaser of any estate, mahal share or land sold for arrears of land revenue, due in respect thereof shall acquire it free of all encumbrances imposed on it and all grants or contracts made in respect of it by any person other than the purchaser. It is undisputed that if the Government had sold the 0-2-8 share for recovery of the land revenue in respect of it, the purchaser would have acquired the property free of all encumbrances.

14. Shri Bobde contends that the same result must follow in a proceeding under Section 157 of the Act which runs—

“157. (1) Any sadar-lambardar or lambardar or cosharer who has paid any land revenue due by any proprietor, or by any malik makbuza, may, within six months from the date of such payment, apply in writing to the Deputy Commissioner to recover the amount on his behalf.

(3) The Deputy Commissioner may reject such application or, after satisfying himself that the amount claimed, or any part thereof, is due and after giving the person against whom the claim is made an opportunity to show cause may, subject to rules made under section 227, proceed to recover, as if it were an arrear of land revenue, such amount, with costs and interest, from the person held by him to be liable for the same.”

15. No rules are framed under Section 227. The fact that this remedy is summary and the rights of the parties cannot be worked out properly is clear from sub-section (4) which runs:—

“No appeal shall lie from an order under this section, but any person affected by such order may institute a suit in a civil court to establish the right which he claims;

Provided that the Crown shall not be made a party to such suit.”

16. In case of sale held by Government for recovery of the arrears of land revenue, a suit is maintainable to set aside the sale on the ground of fraud or on the ground that the arrear for which the property is sold is not due and on no other grounds.

17. Shri Bobde's argument is that having paid the land revenue the lambardar gets a charge on the share of the co-sharer and consequently he is entitled to enforce it by proceeding to recover the amount “as if it were an arrear of land revenue”. According to him the Deputy Commissioner enforces the charge on the property under this section and does not recover the amount as a money debt due to the lambardar. He contrasts this section with section 197 which provides that any sums which the lambardar, mukaddam and other village officers are entitled to recover or demand under the Act may be “recovered in the same manner as an arrear of land revenue payable to Government”. Section 225 provides that a sum ordered by liquidator under the Co-operative Societies Act 1912 may be “recovered in the same manner as an arrear of land revenue” provided the application for recovery is accompanied by a certificate of the Registrar Co-operative Societies, that the sum should be recovered as an arrear of land revenue”.

18. No distinction is made in the two expressions. There is thus really no distinction between the phraseology adopted in Sections 157, 197 and 225. Under the rules framed under Section 211 of the Act, if a purchaser of a survey number from Government makes a default in payment of the full price, the land is put to auction; and deficit, if any, is recovered from him “as an arrear of land revenue”. These phrases “as arrears of land revenue”, “as if it were an arrear of land revenue” and “in the same manner as an arrear of land “revenue”, whether they are used in connection with recovery of revenue or debts due to the State or debts due to local bodies or other persons, appear to have the same meaning. They indicate the mode of recovery and do not clothe the persons entitled to recover with any of the attributes or privileges of Government conferred by Section 138(1) of the Central Provinces Land Revenue Act or the corresponding provisions in the Revenue Recovery Acts of other provinces’. See ‘Kadir Mohindeen v. Muthu Krishna Ayyar’, 26 Mad. 230, a case under the Indian Income-tax Act, where their Lordships held:

“Section 30 of the Income-tax Act has not the effect of converting income-tax into an arrear of land revenue due in respect of the land which may be brought to sale for realization of the income tax, but that its effect is simply to extend the procedure prescribed……for the recovery of arrears of income-tax.”

19. Section 30 provided that the Collector may recover the arrears of income-tax “as if it were an arrear of land revenue”. See also ‘Muthusamiar v. Sreemethanithi Swamiyar Avergal’ 38 Mad. 356 where it was held that the procedure laid down by the Revenue Recovery Act was incorporated into the Madras Local Boards Act, of 1886) by section 75 of the latter Act, and that the sale was not therefore free of all encumbrances; also ‘Ratansingh v. Raghurajsingh’, ILR. (1945) Nag. 975 at p. 985 a case under the Debt Conciliation Act, and ‘Marotrao v. Narayan’, ILR (1948) Nag 264 a case under section 157 of the Central Provinces Land Revenue Act.

20. In section 10 of the Madras Abkari Act, 1864, the expression was “in like manner as for the recovery of arrears of land revenue”. In Section 28 of the new Madras Abkari Act the expression used is “as if they were arrears of land revenue.” In construing these expressions, it was held in ‘Abrahim Khan Sahib v. Rangasami Naicken’ 28 Mad. 420 that the two mean the same thing and the purchaser in a sale for recovery of Abkari dues did not purchase free of encumbrances. In ‘Chinnasami v. Tirumalai Pillai’, 25 Mad 572 it was observed:

“We cannot see any real difference in recovering arrears as if they were arrears of land revenue and proceeding for the recovery of them in like manner as for the recovery of arrears of land revenue”.

21. This was a case under section 7(1)(a) of the Land Improvement Loans Act (XIX of 1883). See also ‘Ramchandra v. Pichaikanni, 7 Mad. 434.

22. Section 7 of the Land Improvement Loans Act, throws a valuable light on the interpretation of these phrases and affords an answer to Shri Bobde's contentions. That section provides that the loans granted under the Act shall be recoverable by the Collector in all or any of the modes namely,

“(a) from the borrower as if they were arrears of land revenue,

(c) out of the land for the benefit of which the loan has been granted, as if they were arrears of land revenue, ‘due in respect of that land’.”

23. If these two expressions mean the same thing as Shri Bobde argues, there was no point in having two separate clauses in the same section. The expression in clause (c) makes a declaration that the land is made a first security for the loan taken for the improvement of that land and consequently the purchase is free of all encumbrances. See ‘Sankaran Nambudripad v. Ramasamiiyer’, 41 Mad 691, ‘Secretary of State v. Harinath’ 26 Nag. LR. 340 and Mahadeo Ambadas v. Trimbak Kashinath’, ILR. (1942) Nag. 88.

24. In the last case, it has been held that the recoveries under Section 7(1)(c) of the Land Improvement Loans Act, are to be made as if they were arrears of land revenue due in respect of the land while the loans Under the Agriculturists' Loans Act are recoverable as if they were arrears of land revenue and consequently in the former case the purchaser gets the property free of all encumbrances while in the latter case he gets it subject to encumbrances. The two cases, ‘Manrakhanlal v. Permanand, AIR 1935 Nag. 185 and ‘Nanhusao v. Nandlal’ 18 Nag. LJ. 185 which support Shri Bobde's argument, were referred to but were not considered.

25. In ‘R.M.V.V.M Chettyar Firm v. M. Subramaniam’ 5 Rang. 458 it was held that the “property-taxes” as defined by the City of Rangoon Municipal Act, were of the nature of land revenue and in appropriate proceedings a purchaser of the property sold for recovery of the arrears of the taxes due on it would get it free of encumbrances. It was however recognized that the expression “as if they were arrears of land revenue” did not mean that the auction purchaser would get in every case a title free from encumbrances. To the same effect is the decision in ‘Abdur Rauf v. N.P.L.S.P Chettyar Firm’ 7 Rang. 113 which follows the earlier case.

26. ‘Secretary of State v. Pisipati Sunkarayya’, 34 Mad 493, on which Shri Bobde relies is not much to the point. It is a case under the Madras Revenue Recovery Act (II of 1864) where land belonging to the defaulter was sold for arrears accruing due on other lands belonging to him. The sale was free of all encumbrances in view of Section 42 of that Act which provides that all lands brought to sale on account of arrears of revenue shall be sold free of all encumbrances. Under the Central Provinces Land Revenue Act, such a sale would undoubtedly be subject to the encumbrances existing on the lands sold.

27. Section 44 of the CPC, as before the Constitution, provided that the Provincial Government may, by notification, in the Official Gazette declare that decrees of any Civil or Revenue Court in any Indian State or any class of such decrees may be executed in the Province as if they had been passed by Courts of British India. The question arose whether a British Indian Court executing a decree passed in the Indian State in respect of which a notification under Section 44 was issued, was competent to go behind the decree and enquire into the question of jurisdiction of the Court which passed the decree. It was held that the words “as if they had been passed by Courts of British India” had not the effect of giving foreign judgments the character of the judgments of British Indian Courts and they do not in any way control the operation of Section 13 of the Code.

28. Notwithstanding the section such a decree still remains a foreign judgment. Its character is not altered. The notification enables a British Indian Court to execute the decree of a Court in an Indian State and the fiction must be limited to that extent. It would be incorrect to impute to the Legislature an intention to obliterate the distinction between judgments of Indian States and those obtained in British India, thereby taking them out of the category of foreign judgments altogether. See ‘Haji Musa Haji Ahmed v. Purmanand Nursey’, 15 Bom 216; ‘Veeraraghava Iyer v. Muga Sait’, 39 Mad 24 (FB); ‘Rama Aiyar v. Krishna Patter’, 39 Mad 733 (FB); ‘Sheo Tahal Ram v. Binaek Shukul’, 53 All 747; ‘Sukh Dial v. Mohan Lal’, AIR 1935 Lah 551; ‘Chormal Bal Chand v. Kasturi Chand’, 63 Cal 1033 and ‘Nil-Ratan v. Cooch Behar Loan Office Ltd.’, ILR (1941) 1 Cal 171.

29. Under Section 15(2) of the English Arbitration Act of 1889, the report or award of any official or special referee or arbitrator on any reference shall, unless set aside by the Court or a Judge, be “equivalent to the verdict of a jury.” The words have been construed as not importing all the incidents of a verdict, for example, the right of appeal on the ground that it is against the weight of evidence but only the immediate consequences, namely, the mode of execution: ‘Glasbrook v. Owen’, (1891) 7 TLR 62 and ‘Darlington Wagon Co. Ltd. v. Harding and Trouvilla Pier and Steamboat Co. Ltd.’, (1891) 1 QB 245.

30. In ‘Radha-Kissen v. Durga Prosad’, ILR (1940) 2 Cal 493 PC the question for decision was whether the holder of a certificate under the Bengal Public Demands Recovery Act (Bengal Act, III of 1913) who had attached a decree passed in favour of his judgment-debtors and had applied under Section 19 of the Act for its execution, was competent, as the representative of the holder of the attached decree, to adjust such decree with the judgment-debtors thereof for a sum smaller than the amount of the decree. Under Section 19, on the attachment of a decree of a civil Court the certificate-holder is entitled to apply for execution of the attached decree, and to apply the net sale proceeds in satisfaction of the certificate. Sub-section (3) provides

“the certificate-holder shall be ‘deemed’ to be representative of the holder of the attached decree and to be entitled to execute such attached decree in any manner lawful for the holder thereof”.

31. A creditor executing his civil Court decree by attachment of a decree obtained by his judgment-debtor is also entitled to execute the attached decree. Order 21, Rule 53, sub-rule (3) of the CPC, provides:

“The holder of a decree sought to be executed by the attachment of another decree of the nature specified in sub-rule (1) shall be deemed to be the representative of the holder of the attached decree & to be entitled to execute such attached decree in any manner lawful for the holder thereof.”

32. Under Order 21, Rule 2, the payment or adjustment of a decree can be certified by the decree-holder or by the judgment-debtor. The certificate-holder justified his action on the ground that the attaching decree-holder is deemed to be the representative of the holder of the attached decree and had therefore the right to compromise the decree which undoubtedly the holder of the attached decree had.

33. In repelling this contention their Lordships held that the words “deemed to be” which occur in this clause suggest a legal fiction by which the attaching decree-holder is regarded as a representative of the holder of the attached decree and consequently clothed him with the same rights as the decree-holder has to execute the decree against the original judgment-debtor. The attaching decree-holder is thus clothed with the rights of the original decree-holder to lawfully enforce the decree by a process of the Court and satisfy his own decree out of the proceeds of such execution. The moment his decree is satisfied, he has no right to further execute the attached decree. Their Lordships observed;

“As the analogy only arises by legal fiction, it must be limited to the purposes indicated by the context and cannot be given a larger effect.”

34. See also ‘Commr. of Income-Tax, Commissioner Of Income-Tax, Bombay v. Bombay Trust Corporation, Ltd.’, 54 Bom 216 (PC) and ‘Laxmanrao Deshmukh v. Collector of Nagpur’, ILR (1945) Nag 399 at p. 403.

35. In ‘Manrakhanlal v. Permanand’, AIR 1935 Nag 185 some of these decisions were sought to be distinguished on the ground that in not one of them were the arrears due declared by the Legislature to be a first charge on the land which was sold for recovering them. The clear provision in Section 7(1)(c) of the Land Improvement Loans Act, 1883, seems to have escaped notice of the learned Judge. There is no similar provision in the Land Revenue Act declaring the amount payable by a co-sharer to the lambardar to reimburse him for the payment of land revenue made by the latter to be a first charge on the estate of the co-sharer. Section 122(1) does not provide for this. Such a provision cannot be inferred by the use of the expression “as if it were an arrear of land revenue” appearing in section 157(3).

36. Shri Bobde relies on, section 122(1), section 128(f) and section 157(1) of the Act to support his contention that the recovery under section 157(3) is of land revenue. The first two provisions clearly refer to the sums payable to Government as land revenue due in respect of the land sought to be sold, while the last provision refers to the sum payable to the person specified therein as reimbursement and interest. These provisions do not warrant a construction that these sums must be deemed to be a land revenue payable to Government not for the limited purpose of recovery but for all purposes so as to attract Section 138(1) of the Act. No doubt, it is reasonable, as Shri Bobde argues, to presume that the same meaning is implied by the use of the same expression in every part of an Act, but the converse does not necessarily follow.

37. As observed by Maxwell in his Interpretation of Statutes, 9th edition, at page 323:

“In ascertaining the meaning to be attached to a particular word in a section of an Act though the proper course would seem to be to ascertain that meaning, if possible, from a consideration of the section itself, yet if the meaning cannot be so ascertained, other sections may be looked at to fix the sense in which the word is there used.”

38. I have already referred to the expressions appearing in other parts of the Act and also in other Acts which are ‘in pari materia’ with the Land Revenue Act. I have shown that the variation in language does not indicate a change of intenion. Although various expressions are used, the intention is to clothe the amounts to be recovered with the character of land revenue for the limited purpose of recovery.

39. To attract section 138(1) a clear provision was necessary as is found in Section 7(1)(c) of the Land Improvement Loans Act, 1883. In my view, the expression “proceed to recover as if it were an arrear of land revenue” in section 157(3) imports that a private debt due by a co-sharer to a lambardar is land revenue merely for the limited purpose of recovery. The debt is not in reality a land revenue. The fiction cannot be extended to clothe the lambardar with all the rights and privileges of Government in recovery of land revenue in the absence of an expression “due in respect of that land” or similar expression in section 157(3). Such an expression cannot be implied.

40. According to the learned Revenue Member deciding ‘Nanhusao v. Nandlal’, 18 Nag LJ 185, a person mentioned in Section 157(1) of the Land Revenue Act acquires a first charge on the land of the person for whom he has made the payment of land revenue to the State; otherwise, he may not be able to reimburse himself as other encumbrances may exceed the value of the property. Such priority is given by converting the sum so recoverable into an actual arrear of land revenue by use of the expression “as if it were an arrear of land revenue”. With respect, I do not agree with, this reasoning. A lambardar and a co-sharer are jointly and severally liable for payment of land revenue due in respect of a mahal. Under the general principle of law, a co-mortgagor redeeming a mortgage is a principal debtor in respect of his own share and a surety in respect of his co-debtor's share.

41. On payment of that debt, a surety is entitled to avail himself of the creditor's security. This principle applies also to charges. It was therefore held in ‘Zalliram v. Mangalsingh’, (1939) Nag LJ 1477 that the Government having been paid the first charge given by the Statute passes to the person making such payment and he is entitled to payment out of the property prior to other creditors of the defaulter, secured or unsecured. He does not get this right by virtue of the expression “as if it were an arrear of land revenue” in S. 157. Without this provision the Revenue Officer would not be able to recover the amount.

42. The matter can also be viewed this way. Having paid the land revenue due to Government, the defendant No. 3 has become the holder of the first charge over the share of defendant No. 2. If he had instituted a suit to enforce this charge by bringing to sale the -/2/8 share, without impleading the plaintiff, the decree and the sale would not have affected the plaintiff's right to that property and to pay off the prior charge. See ‘Laxman v. Madho Prasad’, ILR (1942) Nag 701. It would therefore be unreasonable to hold that the plaintiff's rights are extinguished in the summary proceedings under Section 157, to which he was not a party without any express provision to that effect in that section. If the Legislature intended to extend the fiction it could have been done by adding the words “due in respect of that estate, mahal or land or share thereof” or words similar thereto. These words cannot be imported into the section by analogy.

43. Prom a survey of all these provisions and the authorities, it can safely be said that the purchase is free of encumbrances only when the property is sold for recovery of arrears of public revenue for which the land is the first security by statutory declaration and in all other cases the purchase is not free of encumbrances, whether the amount is due to a private person, a society, local body, or Government. ‘Zalliram v. Mangalsingh’, (1939 Nag LJ 477) (supra) was thus correctly decided.

44. The next question is whether the defendant 1 is entitled to redeem the plaintiff's mortgage. The defendant No. 1 became the purchaser during the pendency of the plaintiff's mortgage suit and in view of Section 52 of the Transfer of Property Act is bound by the result of that suit. His right to redeem the mortgage came to an end on the confirmation of that sale on 7th June 1939. The arrears of land revenue paid off by defendant No. 3 having accrued subsequent to the date of the final decree even defendant No. 3 was not a necessary party to the mortgage suit. There is no force in the contention that Section 52 does not apply to involuntary sales: see ‘Nilakant Banerji v. Suresh Chunder’, 12 Cal 414 (PC); ‘Radhamadhub Holdar v. Monohur Mukerji’, 15 Cal 758 (PC); ‘Motilal v. Karrabuddin’, 25 Cal 179 (PC) and ‘Udayanarayan v. Radhashyam’, AIR 1950 Ori 36; ‘Gendmal v. Laxman’, ILR (1944) Nag 852 on which Shri Bobde strongly relies does not hold to the contrary.

45. As a matter of fact, it was conceded in that case that the doctrine of lis pendens applied generally to auction sales. The ‘ratio decidendi’ of that case is that the present plaintiff though his purchase is subsequent to the purchase by the defendant is not affected by any doctrine of ‘lis pendens’ arising from the Section 157 proceedings even if they are regarded as a suit within the meaning of Section 52 of the Transfer of Property Act. This does not help Shri Bobde's clients.

46. Letters Patent Appeal No. 6 of 1946 thus fails and is dismissed with costs.

47. In the other appeal, the plaintiff claims possession of the entire -/2/8 share on payment of the whole amount of the charge. He was allowed possession of only -/¼ share on payment of half the amount due.

48. If a mortgagee obtains a decree either for foreclosure or for sale, without impleading the subsequent purchaser or encumbrancer of a part of the mortgaged property, and obtains a decree for foreclosure or purchases the property in execution of the final decree for sale, the rights of the person who was not impleaded are not affected. He can sue for partial redemption and cannot be compelled to redeem the whole mortgage. ‘Sri Ram v. Het Ram’, 29 All 279. If he were compelled to redeem the whole mortgage, he would immediately on redemption be entitled to claim and recover from the mortgagee rateable contribution in view of Section 82 of the Act so that by two suits he would achieve the same result that is, partial redemption. If, on the other hand, he was permitted to redeem the whole, the mortgagee would get back his property on payment of proportionate mortgage debt. The true principle must therefore be that in such cases the mortgage should be deemed to have been split up. If the indivisibility of the mortgage is broken, as provided in the proviso to Section 60, whether by purchase, inheritance or otherwise, the mortgagor, the subsequent mortgagor or any person entitled to redeem would be entitled to only partial redemption.

49. As regards the -/¼ share which was not under mortgage, there was merger of the charge on the defendant No. 1 purchasing the property. Under section 101 of the Transfer of Property Act there is no merger of the remaining -/¼ share as between the defendant No. 1 and the plaintiff. Under that section, the plaintiff was not entitled to sell such property without redeeming the prior charge on that property; or, his sale must be deemed to be subject to the charge on that property.

50. In this view, the plaintiff's claim for possession of -/¼ share not covered by any mortgage was rightly dismissed. This appeal also fails and is dismissed with costs. In view of the dismissal of the appeal it is not necessary to pass a fresh preliminary decree for redemption and to give further time for payment. ‘Mst. Rukhmabai v. Krishna Rao’, F.A No. 79 of 1944 D/- 19-12-1951 (FB). It is also not necessary to enlarge the time for payment fixed by the trial Court, particularly as the plaintiff had sufficient time to make the small payment he is required to pay as the price of redemption. No such application was made, even at the hearing.

Hidayatullah, J.:— I have had the advantage of perusing the judgment proposed to be delivered by my learned brother Deo, J. While I agree with his conclusion that the appeals be dismissed with costs I wish to state my reasons as follows:

(30) These two Letters Patent Appeals were referred to this Full Bench because of a conflict of opinion existing between a Division Bench case ‘Zalliram v. Mangal Singh’, (1939) Nag LJ 477 and a single Bench decision of the learned Judicial Commissioner's Court in an unreported case ‘Manrakhan Lal v. Parmanand’, AIR 1935 Nag 185. The appeals arise out of a suit for redemption of a charge over a village share which the mortgagee of that village share seeks to redeem. Nathuram (defendant No. 2) owned 0-2-8 share in mouza Chuchrel, tahsil Harsud, district Nimar. He mortgaged his 0-1-4 share with the plaintiff Munshi Maulabax on 1st May 1930; vide Ex. P-1. Maulabax filed a suit on the basis of his mortgage and obtained a final decree for sale on 9th July 1932 (Exhibit P-2). This decree was not executed till 24th April 1939 when the property was sold and was bought by the plaintiff decree-holder himself: vide Exhibit P-9, which is a certified copy of the certificate of sale.

51. After the final decree in this suit of Maulabax was passed but before the sale had taken place the land revenue of the village including 0-2-8 share of defendant No. 2 fell in arrears. This land revenue was paid by Sitaram (defendant No. 3), lambardar of the village. The amount paid on account of the share of defendant No. 2 was Rs. 470. After the payment of this amount, Sitaram applied to the Deputy Commissioner under Section 157 of the C.P Land Revenue Act for recovery of this amount from Nathuram. The Deputy Commissioner ordered the sale of Nathuram's share. At first the sale was subject to the mortgagee's encumbrance under Section 128(f) of the C.P Land Revenue Act. It appears, however, that the first sale was abortive and thereafter the sale was ordered to be free from encumbrance. This is deduced from the fact that an inquiry under Section 138(2) of the C.P Land Revenue Act was made and the order of sale was without any reservation. This is not disputed before us.

52. When the sale took place the share of Nathuram amounting to 0-2-8 (that is to say 0-1-4 mortgaged with Maulabax and the remaining 0-1-4) was purchased by the first defendant Sardarmal Mahajan. Sardarmal tried to obtain possession of the share but was resisted by the plaintiff. Maulabax thereafter sent a money order for Rs. 282-8-0 representing his half share in the amount of the land revenue paid by Sitaram and asked for redemption of his own share. This was refused by the first defendant and hence Maulabax filed this suit for redemption. He prayed for redemption of 0-1-4 share on payment of half the amount of the land revenue, plus all Incidental costs or on payment of such sum as the Court might deem fit.

53. The trial Court upheld the contention of the plaintiff, but holding that the charge of Sardarmal must be redeemed as a whole ordered the redemption of 0-2-8 share from the charge of Sardarmal on payment of Rs. 565 to him. A decree for redemption was accordingly passed.

54. From this decision Sardarmal and Sitaram appealed. The appeal was however dismissed, and a second appeal was accordingly filed in this Court. This second appeal was heard by Bose, J. (as he then was), who modified the decree by allowing Maulabax (the plaintiff) to redeem only his own share, viz. 0-1-4, on payment of Rs. 282-8-0 and not the entire share of Nathuram. This he did by splitting up the charge to adjust equities between Sardarmal and Maulabax. Prom this decision, two appeals were filed with the leave of the learned Single Judge. Letters Patent Appeal No. 5 of 1946 is filed by Maulabax for reversal of the order of the learned Single Judge and restoration of the decree of the first appellate Court. Letters Patent Appeal No. 6 of 1946 is filed by Sardarmal and Sitaram seeking dismissal of the suit of the plaintiff.

55. In deciding that the mortgage of Maulabax was not affected by the sale in favour of Sardarmal, Bose, J. followed a Division Bench ruling of this Court reported in ‘Zalliram v. Mangal Singh’, (1939) Nag LJ 477. The correctness of the view propounded by the Division Bench, which consisted of Stone, C.J, and Bose, J., was challenged by Shri Bobde in the appeal of Sardarmal. He referred to the decision of Subhedar A.J.C in ‘Manrakhanlal v. Parmanand’, AIR 1935 Nag 185, which view was not considered by the Divisional Bench. In view of this conflict, these appeals have been placed before this Full Bench for decision under orders of my Lord the Chief Justice.

56. The argument of Shri Bobde is that under Section 157 of the C.P Land Revenue Act a sadar lambardar or lambardar or co-sharer who has paid any land revenue due by any proprietor can within six months from the date of such payment apply to the Deputy Commissioner to recover the amount on his behalf, and ‘if the Deputy Commissioner does not reject such application he proceeds to recover the amount claimed as if it were an arrear of land revenue from the person held by him to be liable for the same. Shri Bobde's contention is that the amount paid by the lambardar is initially land revenue and by the fiction which is introduced in section 157(3), even though the liability on account of land revenue might have been discharged the amount is treated once again as land revenue. The effect of this, according to learned counsel, is to restore the same position which would have obtained had the recovery been at the instance of the State Government of an arrear of land revenue.

57. He contends that the land revenue is a first charge, and if a sale is ordered under Section 128(f) of the C.P Land Revenue Act then by virtue of Section 138(1) ‘ibid’, unless the Deputy Commissioner in ordering the sale otherwise directs, the purchaser acquires it free of all incumbrances imposed on it and all grants and contracts made in respect of it by any person other than the purchaser. The counsel contends that an inquiry as required by S. 138(2) was made & there being no direction to the contrary the sale must be taken to be free from the incumbrance of the plaintiff's charge.

58. As against this, the counsel for the respondent contends that the land revenue having been once paid the liability in respect of arrears of land revenue as such ceases, and the provisions of Section 157(3) determine merely the processes by which the recovery can be made and do not bring in their trail all the consequences which a sale for arrears of land revenue as such would have entailed. According to the respondent, the sale may be in accordance with the processes open for recovery of land revenue as such, but the fiction contained in section 157(3) of the Act cannot be carried any further.

59. My learned brother Deo, J. has discussed all the relevant authorities on this point, and I need not therefore refer to all of them. It is plain that the remedy which is provided here is a summary one, and indeed, no appeal from the order of the Deputy Commissioner lies when he takes action under section 157 or refuses to entertain the application. It is provided in sub-section (4) that no appeal shall lie from an order under this section, but any person affected by such order may institute a suit in a civil Court to establish the right which he claims, provided that the State shall not be made a party to such suit. This would show that having recovered the amount from a person from whom the amount was not legally recoverable the State affords him a cheap and quick remedy of recouping himself from the person who should have initially made the payment.

60. The provisions of sub-section (3) of S. 157 merely enable the revenue authorities to treat the recovery on the same footing as if it was a recovery of arrears of land revenue. Unless this provision was made, the processes open to the revenue officers under Section 128 would not be open when the arrear was payable not to Government but to a private person. Section 128 of the Act begins by enacting that ‘an arrear payable to Government may be recovered by any one or more of the following processes:’ As I have pointed out, if this amount recoverable by the lambardar was not made into an arrear payable to Government the processes provided in Section 128 would not have been open. It is not an unusual provision, but is one which is resorted to in numerous statutes to enable recoveries to be made in accordance with the processes open under the revenue law.

61. My learned brother Deo, J. has given a list of statutes in which similar provisions are to be found. Reference may also be made to Section 53 of the Central Provinces Local Self-Government Act, 1920, Section 16 of the C.P Village Panchayat Act, 1920, Section 79 of the C.P Municipalities Act, 1922, Sections 61, 64, 77 and 96 of the C.P Irrigation Act, 1931, Section 2 of the Indian Tolls (Central Provinces Amendment) Act, 1932, Section 13 of the C.P Local Fund Audit Act, 1933, and Section 22 of the C.P and Berar State Aid to Industries Act, 1933. The phraseology used in these Acts may be slightly different, but the effect of all of them is to create a fiction by which the processes open to a revenue officer in the recovery of land revenue as such may be open for the recovery of other amounts.

62. It makes no difference that in this case the amount was originally payable by Nathuram as land revenue. Once land revenue was paid, the amount ceased to be land revenue except for the limited purpose for which it is made into land revenue by law. Under Section 138, the consequences which follow are dependent upon the words ‘due in respect thereof’. These words qualify ‘arrears of land-revenue’ in that section. The intention is to attract the provisions of Section 138 to those cases in which land revenue due in respect of land is itself recovered. Section 138 does not come into play if land revenue itself due in respect of some land is not being recovered. The recovery here is not of land revenue due in respect of the village share. The recovery is of an amount payable to the lambardar recovered as if it were an arrear of land revenue.

63. The distinction is perhaps nowhere better expressed than in ‘Kadir Mohideen v. Muthukrishna Ayyar’, 26 Mad 230 where under Section 30 of the Income-tax Act recoveries were made of income-tax as if they were arrears of land revenue. The learned Judges, Benson and Bhashyam Ayyangar, JJ. observe:

“We are clearly of opinion that Section 30 of the Income-tax Act has not the effect of converting income tax into an arrear of land revenue due in respect of the land which may be brought to sale for realisation of the income tax, but that its effect simply is to extend the procedure prescribed by (Madras) Act II of 1864 and (India) Act I of 1890, to the recovery of arrears of income tax.”

64. This case may be compared with the English case ‘Islington Corporation v. London School Board’, (1902) 2 KB 701 where the question was the effect of section 10 of the Act 1899. Wright, J. therein observed as follows:

“Now, sub-s. 2 provides that the general rate and the poor-rate are to be assessed, made, and levied “as one rate”, which is to be called the general rate, & is to be assessed, made, collected, & levied as if it were the poor-rate; it does not abolish either the general rate or the poor-rate, but leaves them together side by side; it does not say that all these expenses are to be provided for by a levy which is to be part of the poor-rate: it says ‘as if it were the poor-rate’, which is very different from saying that these expenses are to be treated as part of the out-goings of the poor-rate.”

65. In other words, it did not have the effect of making the general rate into poor-rate.

66. Other cases may be multiplied on this point, but it is not necessary to go into them in detail because some of these cases have already been examined by my learned brother Deo, J. and even referred to by the Divisional Bench in ‘Zalliram v. Mangalsingh’, (1639) Nag LJ 477.

67. Shri Bobde's argument based upon a difference in language between several sections of the C.P Land Revenue Act itself does not carry us any further. No presumption arises that two enactments are different because the legislature has used different phraseology. This is an established rule of interpretation of statutes: see Maxwell on Interpretation of Statutes, 9th edition, pages 326-327, where it is observed as follows;

“But, just as the presumption that the same meaning is intended for the same expression in every part of an Act is, as we have seen, not of much weight, so the presumption of change of intention from a change of language (of no great weight in the construction of any document) seems entitled to less weight in the construction of a statute than in any other case, for the variation is sometimes to be accounted for by a mere desire to avoid the repeated use of the same words, sometimes by the circumstance that the Act has been compiled from different sources, and sometimes by the alterations and additions from various hands which Acts undergo in their progress through Parliament. Though the statute is the language of the three estates of the realm, it seems legitimate in construing it, to take into consideration that it may have been the production of many minds and that this may better account for any variety of style and phraseology which is found than a desire to convey a different intention. Even where the variation occurs in different statutes, the change is often not indicative of a change of intention.”

68. The words of Section 197 of the C.P Land Revenue Act, viz. ‘be recovered in the same manner as an arrear of land revenue’ are not essentially different from those of Section 157(3). To say ‘as if it were an arrear of land revenue’ does not convert it into an arrear of land revenue but merely provides the manner for its recovery. In my opinion, and I say it respectfully, the decision in ‘Zalliram v. Mangalsingh’, (1939) Nag LJ 477 is correct, and the contrary decision in ‘Manrakhanlal v. Farmanand’, AIR 1935 Nag 185 is erroneous. I do not propose to give other reasons, which have been lucidly given in the Divisional Bench case, and I would be doing no more than repeating them. This leads, therefore, to the dismissal of Letters Patent Appeal No. 6 of 1946 with costs, and I agree with my learned brother Deo, J. that appeal be dismissed with costs. A fresh decree for redemption shall be drawn up giving the one month's time to the plaintiff to redeem the charge of the first defendant.

69. I am aware that my learned brother Deo, J., relying upon the recent Full Bench case of ‘Mst. Rukhmabai v. Krishnarao’ P.A No. 79 of 1944 D/- 19-12-51 FB has declined to order the fixing of a fresh date for redemption. Since I differ from him, I state my reasons respectfully as follows.

70. The decree of the first Court, which is to be found at page 28 of the paper book, shows that the plaintiff was given a month's time from 4th August 1941 in which to pay Rs. 565 to redeem the 0-2-8 share of mouza Chuchrel. The decree of the first appellate Court did not make any difference. It is to be found at page 34 of the paper book and confirms merely the decree of the first Court. But in doing so, the learned Additional District Judge fixed a fresh period of one month from the date of his decree which was made on 15th January 1942. When the matter came up before the learned single Judge in this Court, he modified the decree; and it is convenient to reproduce the operative portion of his Lordship's judgment.

71. It is there stated that:

“The decrees of the courts below will be modified as follows:—

1. the Rs. 565 which the plaintiff has been directed to pay the first defendant will be altered to Rs. 282-8-0;

2. redemption will be in respect of 0-1-4 share and not 0-2-8;

3. the rest of the plaintiff's claim will be dismissed.

4. each party will bear its own costs throughout because success and failure has been equal.”

72. It would follow that the learned Judge did not fix any period for redemption which was incumbent upon him in view of the drastic change which has been made, in the decrees of the two Courts below. As a result of these changes, the decrees of the two Courts below completely disappeared & merged in the decree of this Court. Since, under the altered conditions, a fresh date for redemption was necessary, even under the decision of the Full Bench, the lacuna must now be supplied. If the mortgagor is not allowed a chance of redemption, it might follow that he had not been set to redeem as required by Order XXXIV, rules 7 and 8 of the CPC. The right to redeem can only be taken away in accordance with the law. See ‘Raghunath Singh v. Raghunath Singh’ 56 All. 561 (P.C) It is for this reason that I hold that even under the ruling, referred to by my learned brother Deo, J., a fresh date for redemption must be fixed. Since the appeal of Maulabax is incompetent as will be shown hereafter, the decree of the learned single Judge is confirmed with a direction for payment within one month of the date of the decree now to be passed.

73. This brings me to the other appeal, viz., the appeal of Maulabax, where he states that he should be allowed to redeem the entire property. That appeal has been disposed of by my learned brother Deo, J. on a discussion of the principles of lis pendens and the splitting up of the integrity of a mortgage. I may say that the appeal itself was very faintly argued by the learned counsel for Maulabax. He said nothing against the view of the learned Single Judge and that view has been endorsed by my learned brother Deo, J. Since the appeal itself was not pressed upon us and no argument has been advanced against the decision of the learned Single Judge, I do not propose to examine that question beyond saying that the doctrine of lis pendens applies to involuntary sales and in the present case the acquisition by Sardarmal would not affect the 0-1-4 share of Maulabax. Further, by the purchase in respect of the remaining 0-1-4 share, Sardarmal must be taken to have bought that property without the mortgage encumbrance of Maulabax, because no charge on that 0-1-4 share existed. The charge was thus enforced in respect of property which was encumbered and property which was not encumbered. It is easy to see that the mortgage of Maulabax would only enure to his benefit in respect of the property which was subject to his mortgage. The charge as a whole must be treated as divisible into two parts, because in the one case the person has acquired the full title but not in the other. In the other case, he has acquired only the equity of redemption of the original owner. These are two different things, and if the sale was subject to the mortgage encumbrance all that can be claimed is redemption of the charge upon the proportionate share. Maulabax, thus, would, have the right to redeem only that portion of the property which is affected by the charge as well as his own mortgage. The conclusion reached by the learned single Judge was therefore correct, and I do not see any reason to disturb the decision on this point. Letters Patent Appeal No. 5 of 1946 fails and is also dismissed with costs. The parties in my opinion, should have a right to set off the costs of the two appeals so that only the difference can be claimed by the one in whose favour there is a balance.

Sinha, C.J:— I agree with my learned Brother, Hidayatullah, J.

A./D.H

74. Order accordingly.