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Judgment
Sadsiva Aiyar, J.—The plaintiff is the appellant. In paragraph 3 of the plaint, it is said that plaintiff was the proprietor of the village
Guttinadevi. The contesting 1st defendant says in paragraph 7 of the written statement that the plaintiff''s right as the proprietor of this village had
been sold in court auction to Nyapathi Subba Row and therefore the plaintiff could not claim prior charge for any rent due to him as he does in the
plaint. Though this question was not made the subject of any issue, it seems not to have been denied that the property had been sold away to
Nyapathi Subba Row. But there seems to have been a question before the lower appellate court as to whether the purchase was prior to the
bringing of the summary suit No. 219 of 1913 by the plaintiff in the revenue court against the 2nd defendant for rent or subsequently to that suit.
Whether it was prior or subequent to it, it has been held by the privy Council in a case in Forbes v Maharaja Bahadnr Singh, I.L.R (1914) C. 926
that if the remedy provided by law in favour of the landlord to claim prior charge for rent is sought to be enforced, he is entitled to do so only when
the relationship of landlord and tenant exists at the time ""the remedy provided by law is sought to be enforced.
As this suit is based, in my opinion, solely on the alleged existence of the prior statutory charge created by Section 5 of the Madras Estates
Land Act in the landlord''s favour and of his right in consequence to bring the holding to sale to enforce that first charge as against all other claims,
the suit has to be dismissed on the short ground that the charge (even if it existed before) ceased to exist when the plaintiff lost his estate.
As, however, other questions of law were argued at some length I shall express my opinion on those questions. Before considering those
questions, some of the facts have to be stated. One Akula Ammanna was the ryot of the holding (for the rent due on which the plaintiff obtained his
decree in the suit of 1913) till at least 1908; Ammanna sold it then to the 2nd defendant by means of a registered sale deed. The first defendant
contends that that sale deed was a nominal transaction and that Akula Ammanna continued to be the tenant of the holding even after 1908. In
execution of the money decree passed against Akula Ammanna in Small Cause suit No. 3 of 1910, the holding was attached as the property of
Ammanna and was purchased by the 1st defendant. 1st defendant obtained possession of the property through court. Then the plaintiff had his
money decree transferred to the District Munsiff''s Court of Cocanada from the revenue court and attached the holding. The 1st defendant on the
strength of his purchase in court auction and possession thereunder put in a claim petition and on that strength the claim was allowed and the
attachment was raised. Hence the present suit was brought to declare the plaintiff''s right to have the property sold by virtue of his alleged prior
charge for the money under the rent decree. The lower Courts dismissed the suit on the ground that under Order 34 Rule 15, read with Rule 15
the plaintiff can enforce his prior charge only by obtaining a decree for sale in a suit for sale brought on that charge.
The appellant''s learned vakil Mr. Ramamurthi relied upon certain observations in Suramma v. Suriyanarayana Jagapathi Razu ILR (1918) Mad.
114 for his contention that Order 34 Rule 14 CPC does not apply at all to the charge created by Section 5 of the Estates Land Act. Section 100
of the Transfer of Property Act Says: Where Immovable property of one person is by act of parties or operation of law made security for the
payment of money to another and the transaction does not amount to a mortgage, the latter person is said to have charge on the property. I am
unable to understand why the charge created by statute for rent under the Madras Estates Land Act, at least in cases where rent is payable in
money does not fall u/s 100 of the Transfer of Property Act. Reliance is placed by the learned Judges in their, judgments in Suramma v.
Suriyanarayana Jagapathi Raju ILR (1918) Mad. 114 on certain decisions of the Calcutta High Court. I might at once state that those decisions
were based upon the construction of the provisions of the Bengal Tenancy Act, especially Section 65 of that Act. But there are several differences
between the provisions of that Act and those of the Madras Estates Land Act. Section 65 of the Bengal Tenancy Act as stated by their Lordships
of the Privy Council in Forbes v. Maharaj Bahadur Singh ILR (1914) Cal. 926 is not a "" happily worded"" section). I shall deal shortly with these
Calcutta decisions. In Fotick Chunder Dey Sircar v. Foley, ILR (1887) Cal. 492. there was no question of enforcing any prior charge. The
landlord got a money decree for rent and he attached other properties of the Judgment-debtor, that is, the properties other than the holding on
which the rent had become due. The only question there was whether though he obtained a money decree merely he ought to be deemed as having
also obtained a mortgage-decree for the sale of the holding and whether he should first bring to sale the holding should not be allowed to proceed
against the other properties of his tenant in execution of the mere money decree for rent. The Court held that Section 68 of Act IV of 1882 had no
application and the landlord could execute his money decree by attaching and bringing to sale other properties. Having decided the direct point
involved, the learned Judges proceeded thus : "" This we think is a sufficient and complete answer to Dr. Banerjee''s argument. But we are not
prepared to admit that, the "" charge "" referred to in Section 65 of the Bengal Tenancy Act, 1885, is such a charge as is defined by Section 100 of
the Transfer of Property Act,"" Where the difference lies, the learned Judges do not point out. On this vague obiter dictum I do not think it is
possible to hold that Order 34 Rule 14 is not applicable where the charge for rent is sought to be enforced. The next case referred to is S. M.
Moha-ranee Dasya v. Harendra Lal Roy, (1896) 1 Cal.W.N. 458 I do not find any reference made to Fotick Chunder Dey Sircar v. Foley ILR
(1887) Cal. 492. in the Judgment in this case but it seems to have been referred to only in the Judgment of the Subordinate Judge who first
decided the case. The only relevant observation in S. M. Maharanee Dasya v. Harendra Lal Roy (1896) 1 Cal.W.N. 458 is that there is no strict
analogy between a charge for rent and a mortgage charge because money due for rent is both as personal debt and a first charge on the land in
respect of which it is due and the landlord can enforce his decree either by selling the land in some cases or by selling other properties. I cannot say
that this case has any bearing on the question whether when a Civil Court is asked in execution to enforce the charge Order 34 Rule 14 is
applicable. As regards Tarini Prosad Roy v. Narayan Kumari Debi (1890) 1.L.R 17 Cal. 301 this also is a decision on the point whether the
landlord can pursue his personal remedy against the tenant withcut first having the holding sold. In the case in Royzuddi Sheik v. Kali Nath
Mookerjee ILR (1906) Cal. 985 the question was whether when a regular mortgage deed or a regular bond creating a charge is taken for the
arrears of rent, the charge under the Bengal Tenancy Act still existed. Mookerjee, J., says :--"" The present suit is in no sense a suit to enforce the
original rent charge. It is in substance, as it is in form, a suit to enforce the rights of the plaintiff under the instalment bond by which in lieu of the
original liability, a new liability was substituted. Besides if the plaintiff had sued to enforce the rent charge, his claim would be barred by limitation.
That ground was sufficient for the disposal of the case and it was not necessary to consider at all the nature of the charge referred to in Section 65
of the Bengal Tenancy Act. But as an obiter dictum again the learned Judge remarks that as decided in Fotick Chunder Dey Sircar v. Foley ILR
(1887) Cal. 492 "" the charge referred to in Section 65 of the Bengal Tenancy Act is not such a charge as that defined by Section 100 of the
Transfer of Property Act, and does not require to be enforced in the same manner.
I shall lastly refer to the case in Gopenath Mahapatra v. Kashinath Beg (1909) 9 Cal. L.J. 284 also referred to in Suramma v. Suryanarayana
Jagapathi Raju I.L.R.(1918) Mad. 114 . That case was decided not only u/s 65 of the Bengal Tenancy Act but also u/s 167 of that Act under
which the purchaser in execution of a rent decree has got the right to apply to the Collector to annul all prior encumbrances. But the question
relating to the necessity of bringing a suit as prescribed under Order 34 Rule 14 was not decided in that case nor was it necessary to decide it.
Phillips, J. however mentions in his Judgment in Suramma Suryanarayana Jagapathirau ILR (1916) Mad. 114 two other considerations as to
why Section 100 of the Transfer of Property Act cannot include a charge for rent u/s 5 of the Estates Land Act. He says "" It may also be noted
that where rent is payable in kind the charge for arrears of rent cannot come within the definition of Section 100 which refers only to payment of
money and it would be most anomalous that a charge created by statute should be a charge within the meaning of Section 100 in some cases and
not so in others."" With greatest respect I do not see why if a particular charge falls within the words of Section 100 it should not be a charge under
that section because another kind of charge created by the same statute does not fall within the section. Further even rent payable in kind becomes
really payable in money whenever the rent is sued for and a decree in the alternative for the value of the rent payable in kind is asked for and
granted. So far therefore as the Judgments in Suramma v. Suryanarayana Jagapathi Raju I.L.R.(1916) Mad. 114 held that Section 100 of Act IV
of 1882 and consequently Order 34 Rule 14 C.P.C. would not apply to the enforcement of a charge for rent even payable in money I respectfully
differ from them. But it was argued that u/s 132 of the Madras Estates Land Act where the property is sold for arrears of rent due on it the
purchaser takes it free of all encumbrances except those created before the Act came into force, reading Sc. 132 with Section 125 of the Madras
Estates Land Act. That is I take it, the main ground of the Judgments in Suramma v. Suryanarayana Jagapathi Rjau ILR (1916) Mad. 114 and I
agree with the Judgments in that respect provided of course the sale was one conducted in execution of its decree as expressly restricted by the
provisions of Section 132. But in this case the decree had been transferred to the Cocanada District Munsif''s Court and that Court has u/s 42
C.P.C. power to execute it only in the same manner as it cannot exercise the powers conferred by the revenue Court by Section 132 of the
Madras Estates Land Act. (In the Calcutta cases there is nothing to show that executions and sales in execution in question were held in any other
Court than a revenue Court).
In the result the second appeal fails and is dismissed with costs.
Spencer, J.
The suit land belonged to one Akula Ammanna who sold his holding by a private sale to 2nd defendant.
The first defendant purchased the property at an auction held in execution of a Small Cause decree in S. C. 3 of 1910 obtained by a 3rd party
against Akula Ammanna.
The plaintiff brought a suit (Rent suit No. 219 of 1913) in a Revenue Court as a landholder to recover arrears of rent from 2nd defendant and
obtained a personal decree for payment of Rs. 137-8-6 with interest.
When in execution of this decree he attached the holding the 1st defendant preferred a claim under Order 21 Rule 58 C.P.C. and it was
allowed.
The plaintiff now sues to establish his right to recover by sale of the land the amount of rent decreed to him relying not on the weakness of 1st
defendant''s title as auction purchaser but on the strength of his own title based on Section 5 of the Madras Estates Land Act, which provides that
the rent due upon ryoti land shall be a first charge upon the holding.
13.The plaintiff''s decree for rent was transferred to a Civil Court (Vie, the Court of the District Munsif of Cocanada) for execution and it is there
that the plaintiff sought to enforce his statutory charge and was defeated.
Now under the Madras Estates Land Act it is in exercise of the right to a charge conferred by Section 5 that the land holder can bring the
ryot''s holdings to sale u/s 111. This he can do either summarily by an application to the Collector or u/s 132 when he has obtained a decree for
arrears of rent and executes it in a Revenue Court. But if a money decree passed by a Revenue Court is transferred to a Civil Court u/s 201 for
execution, the power to execute it under the provisions of Chapter VI does not go with it to the executing Court, as those powers are peculiar to
Collectors as may be seen from Part B of the Sehedule to the Act, serial No. 18 and from the words of Section 132 which runs thus :--The
provisions of this chapter shall be applicable as far as may be, to the execution by a revenue Court of any decree or arrears of rent.
If a decree for rent is transferred to a Civil Court for execution the provisions of the CPC at once become applicable to the execution
proceedings, and the Court executing the decree passed by another Court transferred to it for execution has no authority to go behind the decree
and enforce a charge which is not declared in the decree to be executed; nor can the Civil Court assume powers which by law have been definitely
conferred on Revenue Courts only. This in my opinion is the short answer to the plaintiff''s present claim.
I think that this suit was rightly dismissed by the Courts below and that the Second Appeal should now be dismissed with costs.