1. This second appeal arises out of a suit by a raiyat Under Section 112, Madras Estates Land Act, contesting the validity of a notice under that section by the landholder preliminary to a sale of his holding. The plaintiff, the raiyat, in his plaint alleged that the patta tendered to him contained a number of improper terms. It is true the effect of the impropriety of the various terms is merely that the landholder was claiming a larger amount than was properly due. In his written statement the defendant withdrew the attachment proceedings in respect of the excess amount and pleaded its validity to the extent of the rent admittedly due by the plaintiff. He also contended that the plaintiff should deposit the amount he admits, before the suit is maintainable and issue 1 was taken with reference to this. The Court passed an order directing the plaintiff to deposit the amount admitted by him. The plaintiff has so deposited it. On the other issues the Deputy Collector found that the patta was not proper. The finding is, in one sense, unnecessary. The defendant, the landholder, by Confining himself to the amount admitted by the plaintiff, practically concedes the points raised by the plaintiff. Therefore the lower Courts might have saved themselves the trouble of finding on the other issues. The District Judge also agreed with the finding of the Deputy Collector. The question that now arises is whether the attachment proceedings should not be upheld to the extent of the amount admitted by the plaintiff, the defendant himself having conceded the plaintiff's allegations and confined his claim to the amount so admitted. The decision in Raghunatha Row v. Vellamoonji Goundan A.I.R. 1914 Mad. 86, supports him. One decision relied on by Mr. Sesha Ayyangar, the learned advocate for the respondent, namely, Raja of Venkatagiri v. K. Subbayya : AIR1925Mad1026 , is not quite intelligible to me.
2. The remarks of Devadoss, J., in the latter judgment seem to show that a sale for a larger amount than was really due would be bad and cannot be upheld in respect of the amount admitted. This proposition is unexceptionable. But what is said by the defendant in this case is not to uphold a sale for wrong amount, but to uphold the attachment for the correct amount though originally effected for the wrong amount. In this respect I am not able to draw any distinction between distraint Under Section 178 for the purpose of selling moveable property and sale notice Under Section 112 for the purpose of selling the holding. The two seem to me to stand on the same footing provided the error is corrected before the sale and attachment, or distraint is continued for the correct amount. The two are similar. But there is a judgment of Kumaraswamy Sastri, J., and Reilly, J., reported in Rajah of Mandasa v. Jagannaikulu A.I.R. 1928 Mad. 1103, holding that the distraint is invalid. It is true that the decision in Raghunatha Row v. Vellamoonji Goundan A.I.R. 1914 Mad. 86 was not referred to in it. That is a case of distraint. The learned Judges rely upon the language of Section 52; and in applying Section 52, there can be no difference between a case of distraint and a case of sale Under Section 112. The learned Judges deciding in Raghunatha Row v. Vellamoonji Goundan A.I.R. 1914 Mad. 86 seem to think that Section 52 does not stand in the way of enforcing a patta by way of attachment or distraint to the extent that is valid. The two decisions are directly opposed to each other. I direct this case to be posted before a Bench consisting of myself and Venkatasubba Rao, J.
3. (This second appeal coming on for hearing in pursuance of the above order, the Court delivered the following Judgment:)
4. We do not think that Section 195, Estates Land Act, applied to this case and we think that the Deputy Collector was not justified in directing the plaintiffs to deposit the admitted amount. But we do not wish to express a final opinion on the matter. But rightly or wrongly, he has passed the order and the plaintiffs complied with that order by depositing the admitted amount. At that stage, the parties were agreed as to their rights, the plaintiffs admitted a certain sum was due to the defendant and defendant also admitted that only that sum was due to him. After the case has taken this turn, one would have thought that the best way of disposing of the case was to direct the defendant to take the amount deposited and to order him to pay all the costs of the plaintiffs. Instead of this order the Courts below have chosen to decree the suit and to refund the amount to the plaintiffs, a way of prolonging the dispute between the parties. We now pass a decree in favour of the defendant for the admitted amount as , if there is a suit for rent filed by the defendant. It should be capable of execution on that footing. The litigation being the result of the defendant's improper conduct, the order of the Courts below as to costs will stand. In this Court each party will bear its own costs.