1. The question raised in this appeal is whether a decree for rent obtained by a person who was the landlord when he obtained it, can enforce the decree against the holding in arrears under the special provisions of the Bengal Tenancy Act, after he has ceased to be the landlord. The appellants as ijaradars brought a suit for arrears of rent and obtained a decree while they were ijaradars. Subsequent to the decree, however, they ceased to be ijaradars and they applied for execution of the decree as a decree for rant by attachment and sale of the holding in arrears under the provisions of the Bangal Tenancy Act. The Court of first instance held that the decree-holders cannot avail themselves of the provisions of Sections 65 and 163 of the Ben. Ten. Act, and cannot proceed against the holding in arrears, and accordingly dismissed the applicant. That order was confirmed on appeal by the District Judge, and the decree holders have appealed to this Court. The question involved in the case was considered by a Full Bench of this Court, and the Full Bench was of opinion that if at the time when a suit for arrears of rent is instituted and a decree made, the plaintiff is still the landlord, the fact that he has subsequently sold his interest in the pro-party does not prevent him from obtain and executing the decree against it: see Khetra Pal Singh v. Kritarthamoyi Dassi . 1906 33 Cal 566..
2. The question has also been recently considered in the case of Arthur Henry Forbes v. Maharaj Bahadur Singh . AIR 1914 PC 111, by the Judicial Committee of the Privy Council. The learned pleader for the appellants contends that the Full Bench decision has only been distinguished and not overruled by the judgment of the Privy Council as held by the Courts below, and that the general observations made in the judgment must be taken as applicable to the facts of that case. It is true that in that case the landlord had transferred his interest before he instituted the suit for arrears of rent, and their Lordships in referring to the Full Bench decision upon which this Court relied, pointed out that in the latter case, the landlord did not part with the property, and put an end to the relationship of the landlord and tenant until after the decree in his suit for rent, and that this Court had fallen into an error in drawing an inference of law in support of their conclusion from a decision which was obviously based upon facts different from those with which they had to deal.
3. But after pointing out that the decision of the Full Bench was inapplicable to the facts of that case, their Lordships proceeded to consider the board question:
“whether the special right created in favour of the landlord under S. 66 can be claimed also by one who has parted with the property which gives this right and to which it is attached.”
4. After observing that S. 65 is not happily worded, and gives no indication as to when the rent becomes a “first charge”—whether from the nature of the claim or after it has been ascertained and made the subject of a decree—and that:
“the section does not sufficiently indicate at whose instance the tenure or holding shall be liable to sale in execution of a decree for rent thereof though from the reason of the thing it is obvious that it must be at the instance of the landlord.”
their Lordships considered the general scope of the Act as well as of the Chapter in which the section occurs. Referring to Ss. 65 and 66 of the Act their Lordships observed:
“The two sections taken together cover practically the remedies provided by law for the landlord to recover arrears of rent. One section is the exact corollary of the other. The right to proceed to sale in one case, in the other to eject, is dependent on the existence of the relationship of landlord and tenant at the time when the remedy provided by law is sought to be enforced,”
“a reference to S. 149, Cl. (h) clearly shows that the right to apply for the execution of a decree for arrears was attached to the status of the decree-holder qua landlord: …. To acquire the right which the section gives not only the person obtaining the decree must be the landlord at the time, but the person seeking to execute it by sale of the tenure must have the landlord's interests vested in him. In other words, the right to bring the tenure or holding as the case may be to sale exists so long as the relationship of landlord and tenant exists,”
and came to the conclusion that:
“it is the existing landlord alone who can execute the decree: the ex-landlord is an outsider, and whilst he can execute his decree against the debtor as a money-decree, he has no remedy against the tenure itself.”
5. It will be seen, therefore, that the principle upon which the judgment of their Lordships proceeds, viz., that in order to acquire the right which the section gives, not only the person obtaining the decree must be the landlord at the time, but the person seeking to execute it by sale of the tenure or holding must have the landlord's interest vested in him: that the right to bring the tenure or holding to sale exists so long as the relationship of landlord and tenant exists, and that it is the existing landlord alone who can execute the decree, applies equally to a case where the landlord ceases to be landlord after he obtains a decree for arrears of rent, and before he seeks to enforce it against the tenure or holding, as to a case where he ceases to be landlord before he institutes his suit for rent. In either case there is no relationship of landlord and tenant at the time when the remedy provided by law is sought to be enforced. The principle, therefore, upon which the decision of the Full Bench is based, is inconsistent with that upon which the judgment of the Judicial Committee in the case of Arthur Henry Forbes v. Maharaj Bahadur Singh proceeds. That being so, we think that the question whether the decision of the Full Bench of this Court in the case of Khetra Pal Singh v. Kritarthamoyi Dassi, is still good law, should be decided by a Special Bench.
OPINION.
Sanderson, C.J:— This is a matter which has been referred to us by Chatterjea and Richardson, JJ., before whom the appeal came. In our opinion there was no right of appeal to those learned Judges for the reason that the order from which the appeal was filed was an order in a suit instituted by a landlord for the recovery of rent. The order was passed by a District Judge, and the amount claimed in the suit did not exceed Rs. 100 and the order did not decide any question which related to title to land or some interest in land as between parties having conflicting claims thereto or to any of the matters specifically referred to in Section 153 of the Ben. Ten. Act. Under these circumstances we are of opinion that no appeal lay from the order of the District Judge to the High Court.
6. If this matter had been brought to the notice of the two learned Judges no doubt, they would not have sent this matter by way of reference to us. As a matter of fact only one of the parties was represented before them, and no doubt, through that, this point was not noticed by the two learned Judges. The matter having been referred to us, it is now our duty in view of the opinion which we hold, to dismiss the appeal.
V.B/R.K
7. Appeal dismissed.