Viswanatha Sastri, J.
1. Defendant 1 is the appellant in this second appeal which has been filed against a decree awarding possession and mesne profits to the plaintiffs. The property described in the suit consists of two items, Section no. 492 of the extent of 3 acres 20 cents of wet land and Section No. 12 of the extent of 7 acres 43 cents of dry land. The plaintiffs claim to have purchased the ryoti interest in the lands. Defendant 1 (the Zamindar of Venkatagiri) is the land-holder and his defence is that the holding has been validly sold for arrears of rent at his instance and purchased by him through his agent. Defendant 2 disclaims all interest in the suit, but his wife, defendant 3, claimed that she had been admitted to possession of the first item as a ryot by defendant 1 after his purchase at the rent sale. The judgment of the learned Subordinate Judge is very meagre and unsatisfactory and does not deal either with the evidence or with the points that arise for decision.
2. The events that have led to this litigation have to be narrated in order to appreciate the contentions of the learned advocate for the appellant. Veera Reddi and after him, his son, were the registered pattadars of the lands in question. Veera Reddi's son sold the lands to one Rami Reddi under Ex. P-1 dated 31st March 1926. Rami Reddi was adjudicated an insolvent on 30th January 1932 whereupon the lands vested in the receiver who sold them in due course of administration, under Ex. P. 4 dated 9th October 1935 to one Gopalakrishna Reddi who in his turn conveyed them to the plaintiffs under Ex. P.-5 dated 9th January 1936. The plaintiffs claim title to the property under these transactions. Defendant 1's case with reference to item 1 is somewhat different from his case regarding Item 2. With reference to Item 1, his plea, is that it has been sold under a summary sale for arrears of rent under Chap. VI, Estates Land Act and purchased by him through his agent on 11th July 1929. This plea is untenable in view of the subsequent proceedings taken by the land-holder himself. He brought a suit R. S. No. 4 of 1930 under Section 77, Madras Estates, Land Act (hereinafter called the Act) for arrears of rent of faslis 1336 to 1338 in respect of Item 1 impleading as defendants, 3 persons, namely, Veera Reddi's son the registered pattadar, Rami Reddi the purchaser of the holding from him and one Krishna Reddi, a subsequent purchaser of a part of the holding from Rami Reddi. There was a compromise decree passed on 29th September 1981 and in execution thereof item 1 was sold and purchased by the land-holder on 20th February 1935, It is clear, therefore, that the proceedings which culminated in the rent sale of 11th July 1929 were inoperative to extinguish the ryoti interest. From the cultivation accounts, the adangal and kist collection records of defendant 1, it appears that one Sheikh Alla Baksh was in cultivating possession of Item 1 from fasli 1344 and paying rent to defendant 1. He sold Item 1 to defendant 3 his daughter and she paid rent to defendant 1 in 1940 and 194S and is now in possession of this item. Item 2 of the suit properties was brought to sale under the summary procedure prescribed in Chap. VI of the Act and purchased by defendant 1 on 27th November 1932. Possession was also delivered to him on 26th June 1933.
3. The present suit was brought on 6th January 1943 and the plaintiffs maintain that the rent sales of Items l and 2 were illegal and void and did not extinguish the ryoti interest of Rami Reddi or the receiver in the holding. Notice of the sale proceedings not having been issued to him. Defendant 1's contention is that neither Rami Reddi nor the Receiver was ever recognised as a ryot, that he was not bound in law to recognise them as ryot in the absence of the notice required by Section 145 of the Act, that neither Rami Reddi nor the receiver ever paid rent for the land and that the rent sales were regularly held. It is desirable to consider the case with reference to Item 1 separately from Item 2 for the considerations applicable to the two items differ in material respects.
4. Chapter VI of the Act provides a complete and self-contained procedure for the execution of rent decrees and neither Section 47 nor Order 21, Civil P. C. of 1908 applies to rent sales whether in execution of decrees for rent or under the summary procedure prescribed by chap. VI of the Act, Jagannath Pillai v. Kathaperumal Pillai, 51 Mad. 76: (A. I. R. (14) 1927 Mad. 1035), Gopalakrishnayya v. Narasimharao : AIR1939Mad609 , Suryanarayana v. Sobhanadari Apparao : (1940)2MLJ584 , Sarvarayudu v. Venkataratnam : AIR1945Mad277 , Veeramma v. Rammanna : AIR1946Mad315 and Rajah of Venkatagiri v. Ramaswami : AIR1947Mad262 . Notwithstanding the contrary opinions of Devadoss J., in Sundaraswamier v. Narayanaswamier : AIR1928Mad1107 and Kuppuswami Aiyar J.'s in Peran Ambalagan v. Venkatasami Naicker : AIR1943Mad656 the above statement represents the settled law of this Court. It is equally well settled that the issue of a notice under Order 21, Rule 22, Civil P. C. is a condition precedent to the initiation of proceedings in execution of decrees of civil Courts and a court sale held without such notice is illegal and inoperative to affect the interests of the persons in whom the property vested on the death or insolvency of the judgment-debtor. See Raghunath Das v. Sundara Das 42 Cal. 72: A. I. R. 1914 P. C. 129, Kala Chand v. Jagannath Marwari , Rajagopala Aiyar v. Ramanujachariar, 47 Mad. 288 : A. I. R. 1924 Mad. 431, Kanchamalai Pathar v. Shahaji Raja Sahib, 59 Mad. 461: A. I. R. 1936 Mad. 205. Mr. Vedantachari, the learned advocate for the appellant argued that the provisions of Order 21, Rule 22, Civil P. C., did not apply to sales in execution of rent decrees and that as neither Rami Reddi nor the receiver on his insolvency, had given the notice prescribed by Section 145 of the Act to the landholder and neither of them had been recognised by the land-holder as a ryot, it was not incumbent on the landholder to issue notice of the execution proceedings to either Rami Reddi or the receiver. Consequently, the sale in execution of the rent decree held withought such notice is not vitiated by any illegality. The learned advocate laid stress on the provisions of Section 145 of the Act as amended in 1934. Mr. Vepa P. Sarathy the learned advocate for the respondent relied on the decision in Ahmed Batcha Sahib v. Mohamed Haneef Sahib : (1945)2MLJ158 , where this Court held with reference to Sections 146 and 146 of the Act as they stood before the amendment of 1934 that it was the duty of the land-holder to serve notice of sale under chap. VI of the Act on the receiver in insolvency on the adjudication of the ryot and that a sale of the insolvent's holdings without giving notice of the sale to the receiver was not binding on him. This case is sought to be distinguished by the appellant on the ground that she Court expressly rested its conclusion on the law as it stood unaffected by the amendment of Section 145 in 1934 and it does not hold good after the date of the amendment. There is considerable force in the argument and the point is not free from difficulty.
5. It is indeed a matter for regret that rent sales held without the issue of proper notice of sale under chap. VI of the Act should be liable to challenge by a suit in a civil Court for a period of twelve years after the sale had been held and possession of the holding delivered to the purchaser, even though the rent claimed was due as a first charge in the holding and there had been a default in the payment of the rent. Titles acquired under rent sales have too often been upset by reason of defects in the issue of notices under chap. VI of the Act and that too many years after the sales had been held. I have referred to this aspect of the matter in my judgment in S. A. No. 1674 of 1946. Having regard to the uniform course of decisions in this Court referred to in my judgment in that case, the remedy is only by legislation. Holdings often change hands by reason of death, insolvency or transfers inter vivos and while the issue of notice of sale to the registered pattadar under chap. VI is a proper and reasonable safeguard the absence of notice to other persons interested in the holding but who have not notified the land-holder of their interest, should not be considered to be a fundamental defect vitiating the sale. It was evidently in this view that Section 145 and 147 of the Act were amended in 1934. Unfortunately, however, the object has not been fully achieved by the amendment. I am constrained to hold for reasons which will presently be stated, that the decision in Ahmed Batcha Sahib v. Mohamed Haneef Sahib : (1945)2MLJ158 , holds good even after the amendment of Sections 145 and 147 in 1934.
6. As originally enacted, Section 145 of the Act dealt with a transfer of a holding and the subdivision of a holding among co-sharers, Section 146 of the Act as it originally stood dealt with transfers of holdings or portions thereof either by the act of a ryot or as a result of a decree or order of a civil Court or a rent or revenue sale and provided that the landholder was bound to recognise such transfers, if the notice in writing had been communicated to him by the transferor and transferee or if a certified copy of the decree or order of the civil Court on the sale certificate had been produced before him, as the case might be. Section 147 of the Act before its amendment, provided as follows:
'All acts and proceedings commenced or had under this Act against the transferor or the co-sharer prior to the giving of notice under Section 146 or prior to the production of such copy of the decree or order or certificate of sale under Section 146 in so far as such acts and proceedings affect or purport to affect the land on which the arrears is due, still, as against the transferee or co-sharer be as valid and effectual as if such acts and proceedings had been commenced or had against the transferee or co-sharer himself, and he had been the defaulter.'
The amending Act of 1934 deleted Section 146 and incorporated it with Section 145 itself and also went further by including cases of devolution of a ryoti's holding by operation of law in Section 145. The amended Section 145 provided for a notice of devolution by operation of law being given to the land-holder by the person on whom the holding devolved and cast an obligation on the land-holder to recognise the person giving the notice as a ryot. Other provisions for an enquiry and decision by the Collector with reference to oases of disputed transfers or claims by devolution were also introduced in Section 145, Section 147 of the Act as amended does not incorporate all the changes which were consequential on the amendment of Section 145. Section 147 of the Act, as amended, runs as follows:
'147 (1) All acts and proceedings commenced or had under this Act against the transferor or the co-sharers prior to :
(a) the giving of the notice under Sub-section (2) of Section 145, or
(b) the production of the certified copy of the judgment, decree or order under Sub-section (3) of 4hat section or
(c) the production of the certified copy of the decree or order or the sale certificate or certified copy thereof under Sub-section (4) of that section, or
(d) the production of a certified copy of the order under Sub-section (6) of that section
In so far as such acts and proceedings affect or purport to affect the land on which the arrear is due, the crops growing thereon and the products gathered therefrom, shall as against the transferee or co-sharer be as valid and effectual as if such acts and proceedings had been commenced or bad against the transferee or co-sharer himself, and he had been the defaulter.
* * * * *(3) the transferor or co-sharer shall not, until notice is giving in writing as aforesaid or until the document referred to in Clauses (b), (c) or (d) of Sub-section (1), as the case may be, is produced by reason only of the transfer or division, cease to be subject to any of the liabilities attaching to him as a ryot.'
While reference is made in the amended Section 147 to the notice under Section 145 (2), no reference is made to the notice under Section 145 (5), in cases of devolution by operation of law. It is therefore, arguable that cases of devolution by operation of law were not meant to be hit at by Section 147 in the same manner as transfers inter vivos, since no reference is made in Section 147 to Section 145 (5) and the notice authorised to be given by that subsection. There is however, a reference in Section 147(d) to the production of a certified copy of the order of the Collector under Section 145 (6) of the Act deciding disputed rights on a devolution of the holding by operation of law. But the words immediately following Section 147 (d) as well as Section 147, Sub-section (3) contemplate only cases of transfers inter vivos and partitions of holdings and not cases of devolution by operation of law. The result is that Section 147 (as amended) while it affords protection to the land-holder who has not had notice of transfers inter vivos or in invitum or sub-divisions of ryot's holdings does not extend the protection to cases of devolution by operation of law. It is not possible to say that there is here a casus omissus. In any case it is not permissible for the Court to fill up this gap by a process of judicial interpretation.
7. Notice under Section 112 of the Act and the subsequent sections of chap. VI to the legal representative of a registered deceased pattadar or to the Official Receiver on the adjudication of the registered pattadar as an insolvent, would be necessary before the holding could be sold at the instance of the landholder for arrears of rent even though the legal representative or the Official Receiver as the case may be, has not given notice to the landholder of the devolution of interest under Section 145 (5) of the Act as amended in 1934. In any case the sale of Item 1 in execution of the decree for rent in R. S. No. 4 of 1930 without any notice whatever either to Rami Reddi or the Receiver in insolvency, is ineffective to extinguish the title of the receiver, the insolvent, Rami Reddi having been recognised as a ryot by the landholder as shown below.
8. It is contended by the respondent that though the notice contemplated by Section 145 (5) had not been given to the land-holder by Rami Reddi the insolvent or the receiver in insolvency, the land-holder had recognised them as ryots in succession and therefore the Official Receiver was in the position of a 'defaulter' to whom notice of the sale should have been given under Section 112 and the succeeding sections of chap. VI of the Act. Mr. Vedantachari argued that there had been no recognition by the land-holder either of Rami Reddi or the Official Receiver as a ryot, no notice having been given by either of them under Section 145. If a notice under Section 145 (5) has been given, the land-holder is bound to accept the person giving notice as a ryot and would be further bound to give notice to him as a 'defaulter' under Section 112. The giving of a notice under Section 145 (5) and its acceptance by the land-holder is, however not the only mode of recognition of a person as a ryot. The landholder might, by his own conduct, and without the formality of a notice under Section 145 (5) have recognised a person interested in the holding as his ryot and a person so recognised would be a 'defaulter' to whom notice would be necessary under Section 112 on the Act before the holding is sold. In Midnapore Zamindari, Co v. Muthuppudayan, 44 Mad. 534 : A. I. R. 1921 Mad. 195 this Court took the view that the expression 'defaulter' in Section 112 of the Act connoted only a registered pattadar or his heirs or any transferee whom the landholder was bound to recognise under Section 146 of the Act (now Section 145). This was held to be too narrow a view of the meaning of the word ''defaulter' and it has since been held by decisions of the Full Bench that the term 'defaulter' would include not only registered pattadars and persons whom the landholder was bound to recognise on receipt of a notice under Section 146 (now Section 145) but also transferees whom, in fact, he has recognised by his own acts and conduct. There is nothing in the Act to prohibit a landholder from accepting a transferee or a person on whom the holding devolves by operation of law as his ryot without the formality of a notice under Section 145. See Lakshmana Iyer v. Aiyasami Chettiar : AIR1941Mad149 and Munusami Mudaliar v. Narasappa Mudaliar, I.L.R. (1941) Mad. 785 : A. I. R. 1941 Mad. 639. In the present case the land-holder himself filed the suit R. S. No. 4 of 1930 for arrears of rent against Rami Reddi in addition to the registered pattadar and entered into a compromise with him on foot of which a decree was passed. Rami Reddi was impleaded as a defendant, because be was in possession of the holding and liable to pay the arrear of rent claimed by the landholder. There is also oral evidence accepted by the Courts below that Rami Reddi was in possession of the holding at the time of the suit. There is evidence to show that defendant 1 (the land-holder) filed a proof of his debt before the Receiver on the insolvency of Rami Reddi, but as Rami Reddi had other properties which vested in the receiver, it is difficult to say that the land-holder who filed a proof a debt thereby recognised the devolution of the interest of Rami Reddi in the holding on the receiver. In view of these circumstances, I am unable to say that the finding of the Courts below that Rami Reddi, the purchaser from the registered pattadar had been recognised as a ryot by the landholder is erroneous. It follows, therefore, that the plaintiffs the purchasers from the receiver, have made good their title to item No. 1, the rent sale being inoperative to extinguish the title of the receiver by reason of the omission to issue any of the notices prescribed by Chap. VI of the Act to the receiver or to Rami Reddi the latter of whom had been recognised as a ryot by the landholder.
9. As regards item 2, the summary sale of the holding was on 27th November 1982 before the amendment of Section 145 of the Act and the sale having been held without any notice to the receiver, it would not extinguish his title. The case would be directly governed by the decision in Ahmed Batcha Sahib v. Mohamed Haneef Sahib : (1945)2MLJ158 .
10. For these reasons I hold that the decrees of the Courts below in so far as they direct possession of items 1 and 2 to be delivered to the plaintiffs should be affirmed. The decree for mesne profits against defendant 1 is unsustainable because all that be did was to receive the melwaram payable on the lands and he was entitled to it in any event. Indeed Mr. Vepa P. Sarathy did not support this part of the decree of the appellate Court. The direction for payment of mesne profits by defendant 1 to the plaintiffs is therefore vacated. Subject to the above modification, the second appeal is dismissed. Having regard to the inordinate delay of seven years in the institution of this suit and the untenable claim for mesne profits, I direct that each party do bear his or her own costs throughout.
11. Leave refused.