1. The learned Judges have differed on the question whether a second appeal lies to this Court and that depends upon the question whether the present suit is one of a small cause nature, and if it be a suit for the apportionment of rent it is not of a small cause nature (see Article 7 of 2nd Schedule of the Provincial Small Cause Courts Act). The plaint in this case recites that the lessee failed to get possession of a portion of the demised premises by reason of a decree against the lessor. The plaintiff who sues for rent claims only a rateable amount namely one-third of the stipulated rent or Rs. 116-10-8 a year. He does not allege that the rent had been apportioned at this figure by consent of the parties but only that the defendant had settled the claim for rent up to 1904 on what terms he does not say. The finding is that there was no agreement about it, and therefore it is quite clear that the suit did involve an apportionment of rent and could not have been decided without it, that, therefore it was not a suit of a small cause nature and that a second appeal lies. The Letters Patent appeal must be allowed with costs and we must proceed to dispose of the second appeal.
2. The only ground taken is that the Lower Courts were wrong in apportioning the rent between the original lessor and purchaser of his interest in execution at court sale. Section 36 of the Transfer of Property Act provides for such apportionment, and although it is no doubt true under Section 2 (d) of the Act. it does not apply to sales in execution yet the section embodies a rule of justice, equity and good conscience which we think should be applied. That appears to be the view taken by this Court in Kunhi Sow v. Mulloli Chathu I.L.R. (1912) M. 86 following Lakshminarayanappa v. Melathraman Nair I.L.R. (1903) M. 540. The case reported in Satyendra Nath Thakur v. Nilakantha Sing a I.L.R.(1893) C. 383 was a case of a transfer of the lessee's interest and it is unnecessary for us to consider it. With great respect we are unable to follow the decision in Mathewson v. Shyama Sundar Sinha I.L.R. (1906) C. 786. In this case the question may depend upon the terms of the contract of sale and neither the sale proclamation nor the sale certificate have been produced and in the absence of any evidence we must presume that what was sold was simply the land. The Second Appeal therefore fails and is dismissed with costs.