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Judgment
Alfred Henry Lionel Leach, C.J.—The question in this appeal is whether the charge created by Section 5 of the Madras Estates Land Act,
1908, continues to operate in respect of the arrears of rent which have accrued due between the date of the landholder''s suit and the sale of the
property when it has been sold in execution of a decree for rent. Admittedly since the amendment of Section 125 of the Act in 1934 the charge
does not continue, but this appeal is concerned with a position which arose before the Act was amended and the appellant says that then the
charge was a continuing one.
The appellant is a zamindar in the Kistna District. One Gangulu held a patta granted by the appellant, but fell in arrears with his rent. The
consequence was that the appellant instituted in the Revenue Court S.S. No. 373 of 1922 to recover what was due to him. He obtained a decree
and in execution proceedings (E.P. No. 381 of 1925) he caused 3.56 acres of the holding to be sold. The sale took place on the 5th May, 1926
and the respondent was the purchaser. Although no patta was issued to the respondent he was accepted as the tenant of the 3.56 acres until the
year 1934. During these eight years the respondent duly paid to the appellant the stipulated rent. In 1924 the appellant filed another rent suit (No.
287 of 1924) against Gangulu to recover what had become due subsequently by way of rent. He obtained a decree, but apparently he did not take
active steps to execute it until 1933. In that year he instituted proceedings in execution and attached all the land covered by the patta, including the
3.56 acres which had been sold to the respondent on the 5th May, 1926. The Court allowed the whole of the holding to be sold, and on the 24th
July, 1934, put the appellant into possession of it. It is not surprising that the respondent objected and brought a suit for a declaration that the
proceedings were void against him and for a decree for possession of the 3.56 acres and. the mesne profits thereon. This suit was filed in the Court
of the District Munsiff of Bezwada. The District Munsiff held that it was well founded and granted the respondent the decree which he sought. The
appellant appealed to the Subordinate Judge of Bezwada, who reversed the decision of the District Munsiff. The respondent then appealed to this
Court and Wadsworth, J., restored the District Munsiff''s decree. The present appeal is from the decision of Wadsworth, J., under clause 15 of the
Letters Patent.
Before Wadsworth, J., the respondent raised two contentions. In the first place, he said that the execution proceedings were bad because he
was in fact a ryot and had received no notice of the execution proceedings, relying here on the Full Bench decisions of this Court in M. Lakshmana
Aiyar and Another Vs. Aiyasami Chettiar and Another, . and Y.G. Peria Muniswami Mudali and Others Vs. Sena Narasappa Mudali (deceased)
and Others, . In the second place he said that by reason of the sale to him of the 3.56 acres on the 5th May, 1926, the charge referred to in
Section 5 no longer existed on the land, but had passed to the sale proceeds. The learned Judge considered that it was not necessary to decide the
first question as in his opinion the respondent was entitled to succeed on the second point raised by him.
Section 5 of the Madras Estates Land Act states that the rent of ryoti land together with any interest which may be due in respect of the rent
shall be a first charge upon the holding and its produce, subject to a proviso which does not apply here. Section 125 reads as follows:
When a holding or part of a holding is sold for arrears due ill respect thereof, the purchaser shall pay, subject to any right or interest which the ryot
has created therein with the landholder''s permission in writing registered and subject also to any encumbrances created before the passing of this
Act, but not subject to any arrears of rent due in respect of the holding before the date of sale or to interest on such arrears, whether a decree has
been obtained or not for such arrears of interest.
The words in italics were inserted by the Amending Act VIII of 1934.
Section 127 embodies rules for the disposal of the sale proceeds when a holding has been sold in execution of a decree for arrears of rent. In
the first place the Collector is required to make a deduction at a rate not exceeding one anna in the rupee for poundage. The balance is then
disposed of this way. The landholder first receives the cost incurred by him in bringing the holding to sale. He is then paid the amount due to him
for arrears and interest up to the date of payment. If there remains a balance after these sums have been paid, the landholder is paid any arrears of
rent and interest due in respect of the holding between the date of the notice u/s 112 and the date of the sale. If when these payments have been
made there is still �a surplus it has subject to an order of a Civil Court to the contrary, to be paid to the defaulter on his application after the
expiration of three months from the date of the sale.
As already indicated, the respondent''s case is that when a sale in execution has taken place, the charge created by Section 5 is transferred from
the land to the sale proceeds. There can be no doubt that this is now the case as the result of the amendment to Section 125, but the respondent
contends that the amendment of Section 125 did not operate to change the law and Wads-worth, J., agreed that this was so. If the ''conclusion of
the learned Judge is right the appellant is out of Court.
There are similar provisions in the Bengal Tenancy Act (VIII of 1885). Section 65 of the Bengal Tenancy Act corresponds to Section 5 of the
Madras Estates Land Act and Section 169 to Section 127. The wording is somewhat different, but the provisions are admittedly to the same
effect. The question whether the charge on the land is transferred to a charge on the sale proceeds when land is sold in execution of a rent decree
under the Bengal Tenancy Act was raised in Faez Rahaman v. Ramsukh Bajpai ILR (1893) Cal. 169. and a Bench of the Calcutta High Court
held that the provision in Clause (c) of Section 169 of the Bengal Tenancy Act showed that the Legislature intended that the charge in respect of
rent falling due between the date of suit and the date of sale in satisfaction of the decree should be transferred from the tenure to the sale proceeds
and that the tenure should pass free of all liability created, upon it by the default of the previous holder. The two acts are in harmony and
Wadsworth, J., accepted this decision as correctly interpreting the Madras statute before it was amended and we agree with him. It follows that in
our opinion the amendment to Section 125 of the Madras Act did not effect any change in the law, and that the words added to the section were
only added in order to make it perfectly clear that the charge on the land did not continue. The Court is not concerned with what transpired in the
Legislative Council when this amendment was made to the Act. The Court can only have regard to what was in the statute before the amendment
and what is in it after the amendment. The District Munsiff did pay attention to what was said in the Legislative Chamber when the amendment was
decided on, and in doing so was wrong, but his conclusion that Section 125 did not make any change in the law is nevertheless acceptable and the
decision of the Calcutta High Court in Faez Bahamian v. Ramsukh Bajpai ILR (1893) Cal. 169 lends strong support for this opinion. As we agree
with the decision of Wadsworth, J., the appeal will be dismissed with costs.