John Edge, C.J. and Burkitt, J.
1. The plaintiffs, who are respondents here, brought their suit against their landlord, who was the zamindar, the appellant here, to recover compensation for their property which was sold in execution of a decree for rent made by a competent Court. The first Court dismissed the suit, holding that the suit did not lie. The Court of First Appeal set aside the decree of the first Court and made an order of remand under Section 562 of the Code of Civil Procedure. From that order this appeal has been brought.
2. The facts of this case are these: The zamindar applied to a revenue officer to commute the rent theretofore paid by these plaintiff's as his tenants in kind to a fixed money rent to be paid in future. The Assistant Collector made the order, and fixed the money rent to be paid in future. After that order had been made, the zamindar brought a suit for arrears of rent against his tenants, these plaintiffs, in the Court of Revenue and obtained a decree for rent at the rate which had been fixed by the order of the Assistant Collector. That decree was put in execution; property of these plaintiffs appellants was attached and sold, and the decree was partially satisfied out of the sale proceeds. This suit is brought to recover the money so realized, the Board of Revenue having, before the commencement of this suit and subsequently to the passing of the decree for rent, set aside the order commuting the rent in kind into a fixed money-rent.
3. For the defendant appellant reliance has been placed on the principle of the decision in Marriot v. Hampton 7 T.R. 269 : S.C. 2 Smith L.C. 409, 10th Ed., and it has been contended that, as the Board of Revenue had not jurisdiction to interfere in appeal or otherwise with the decree for rent, the decision of their Lordships of the Privy Council in Shama Parshad Roy Chowdhery v. Hurro Parshad Boy Chowdhery 10 Moo. I. A. 203, the decision of the majority of the Full Bench of the High Court at Calcutta in Jogesh Chunder Dutt v. Kali Churn Butt I.L.R. 3 Cal. 30, and of the Calcutta Court in Raja Nilmoney Singh Deo Bahadoor v. Sharoda Parshad Mookerjee 18 W.R. C.R. 434, did not apply, as in all these cases the Court which passed a subsequent decree, which had the effect of reversing or superseding the decree under which the money was paid which was sought to be recovered, had jurisdiction over the suit in which such last mentioned decree was made.
4. On the other hand for the plaintiffs respondents it has been contended that, the setting aside in revision by the Board of Revenue of the order of the Assistant Collector commuting the rent in kind into a fixed money rent had the effect of superseding the decree for rent of the Court of Revenue, as that decree was based on the order of the Assistant Collector commuting the rent.
5. As a matter of fact it is questionable whether in this case the Assistant Collector had any jurisdiction to make his order commuting the rent in kind to a fixed money rent. The Board of Revenue had absolute jurisdiction in revision over that order of the Assistant Collector. The decree for rent made by the Court of Revenue being for a sum exceeding Rs. 100 was one over which the Board of Revenue had no jurisdiction of any kind, and was one the appeal from which lay exclusively to the District Judge. No appeal in fact was made from the decree for rent. It appears to us that their Lordships of the Privy Council, in the case which was before them and to which we have referred, when speaking of a decree being reversed or superseded, were, as to reversal certainly, speaking of reversal by a competent Court, and as to supersession were referring to such supersession as had taken place in the case before them. That was a case in which the money sought to be recovered had been paid under decrees which were based solely on a decree between the same parties which was subsequently revorsed by their Lordships of the Privy Council. We think the supersession to which their Lordships were referring must have been a superseding by a decree of a Court which had competent jurisdiction to reverse the decree under which the money had been paid, if it had been brought before them. It is quite plain to our minds that if there bad been no order made at all for a commutation of the rent in kind into a fixed money rent, but a Court of Revenue had erroneously made a decree for a money rent and that decree was executed and was not reversed in appeal or superseded by a Court competent to reverse it, a tenant whose goods had been sold in execution of such decree for rent or who had satisfied that decree by payment, could not recover so long as the decree for rent was not reversed or superseded by a Court competent in that respect. The defendants bad a remedy against this decree for rent, and that was by appealing. Of that remedy they did not avail themselves, and it may be observed that, as the Assistant Collector apparently acted without jurisdiction in making his order of commutation, the defendants had a good ground of appeal. The fact that the order of the Board of Revenue in revision set aside the order of the Assistant Collector commuting the rent cannot, in our opinion, put the plaintiffs in a better position than they would have been in, if, as we think is probable, the Assistant Collector had no jurisdiction to make the order of commutation. In our opinion, as the decree of the Court of Revenue stands unreversed and not superseded by a competent Court, this suit must fail. We allow this appeal with costs in this Court and in the Court below, and, setting aside the order under appeal we dismiss the appeal to the Court of First Appeal and restore and affirm the decree of the first Court.