1. The learned Judge confirmed the decree setting aside the distraint on the ground that it was for an excessive amount. It is contended here with reference to Section 53 (2), Estates Land Act, that the amount, in respect of which the distraint was excessive, should have been ascertained and that the distraint should have been set aside in respect of that amount only and sustained in respect of the remainder of the demand.
2. Section 53 (2) is general in its wording. It refers to the pattah as enforceable without qualification to the extent to which it is found to be correct. On its merits appellant's contention would appear to be in accordance with convenience and justice.
3. Contra it is urged first that a pattah found incorrect as to the amount of the demand is not partially correct, but totally incorrect, a partially correct pattah being for instance one found correct as to some only out of the items of the holding covered by it. No authority has been shown for this contention, and it does not commend itself on its merits.
4. Next it is urged that Section 53 (2) deals only with the procedure by suit on the pattah and provides only for the enforceability of the pattah by suit. This is supported on the, ground that Section 53 (1) refers to distraint and sale of moveables and to sale of the holding under Chapter VI and that Section 53 (2) must, therefore, have been intended to regulate the remaining method of recovery provided by the Act, than by suit. This does not, in my opinion, follow. As observed above, Section 53 (2) contains no restriction of its effects to suits. The use in it of the word 'nevertheless' is against the importation of that restriction. And finally such importation is, in my opinion, negatived by the fact that exchange of pattah and muchilika is not under the Act a necessary preliminary to the institution of a suit, and a provision regarding errors in the former could, therefore, have no effect in connection with one.
5. We have been referred to the course of decisions under Act VIII of 1865 which contained nothing similar to Section 53 (2). Those decisions, therefore, do not seem to be material. I observe, however, that up to 1908, when the Estates Land Act came into force, there was authority for and against claims similar to that of appellant and that those cases, therefore, afford no reason for a decision against him.
6. In these circumstances the appeal must be allowed. The lower Appellate Court's decision is set aside and it is directed to re-admit the appeal and dispose of it according to law in the light of the foregoing, after deciding what amount was lawfully recoverable by appellant by his distraint and after dealing with respondent's contention that tender of pattah was not proved. Costs to date will abide the result of the re-hearing.
Seshagiri Aiyar, J.
7. I entirely agree. Mr. Venkatarama Sastriar for the respondent argues that the word enforceable in Clause (2) of Section 53 of the Estates Land Act deals only with suits for rent and not with proceedings by way of distraint. I am unable to find any justification for the contention. Clause (l) makes no reference to suits. It makes tender of pattah a condition precedent to the adoption of distraint proceedings. Clause (2) is by way of exception, the object being to enforce the distraint to the extent to which the pattah is correct. If the history of the legislation is looked into, the meaning of the two clauses will be rendered clearer. By Section 7 of Act VIII of 1865 the landlord was precluded from suing for rent or from distraining for it unless he had tendered a proper pattah. Under that Act even for suits for rent in Civil Courts, pattah should have been tendered. The new Act has expressly enacted that in certain classes of cases the landlord must sue for rent only in the Revenue Court: and at the same time it has removed the restriction that there should be a tender of pattah prior to suit. The general principle of the legislation is that in suits for rent, the landlord is not bound to tender a pattah before he sues to recover it,--but if he wants to adopt the exceptional remedy of distraint in which he takes upon himself the functions of the Court, although he has to conduct the proceedings with the assistance of the Revenue Officials, he must have tendered a pattah in order that the Subordinate Revenue Officials may have some tangible proof of the landlord's claim. It would serve no purpose, therefore, to enact in Clause (2) of Section 53 that the landlord can enforce his claim for rent in a Revenue Court in so far as the pattah correctly states it. If the decisions prior to the Estates Land Act can furnish any assistance, I feel no doubt that they would support this conclusion of mine. Prior to the passing of the new Act, the predominant view was that a distraint for an excess amount should not be avoided altogether. See Ramachandra v. Narayanaswami 10 M. 229; Bhupatirazu v. Ramaswami 23 M. 268; Pichuvayengar v. Oliver 26 M. 260; Periakaruppa Pillai v. The Manager of the Lessees of the Sivaganga Zemindari 31 M. 22 : 3 M.L.T. 29 : 17 M.L.J. 479. I do not refer to Bommadevara Venkata Narasimha v. Sajja Sattaya 9 Ind. Cas. 738 : (1911) 2 M.W.N. 139 : 9 M.L.T. 231 : 21 M.L.J. 570 : 35 M. 139, because that was after the Act. For these reasons, I agree in the conclusion at which my learned colleague has arrived.