Venkatasubba Rao, J.
1. The suit brought under Section 112 was ona to contest the right of isale and the ground on which the right jwas contested, was that the rent claimed was exoessive. The purpose of such a suit is to ascertain the rent; as a matter of fact, the only relevant issua to ba itried is: is tha rent claimed the proper 'rent or not? Tha words of Article 8, Part A, are wide enough to cover such a 'proceeding. Mr. Sasha Ayyangar'a contention is that the auit was not directly concerned with the ascertainment of the rent; but the words must be understood in their plain and natural meaning and I sea no good ground for giving them the restricted effect suggested by the learned Counsel. Bangayya Appa Rao v. Sriramulu (1904) 27 Mad 143, although it is a decision under the Rent Recovery Act, throws valuable light on the point. The suit in that case was in regard to tha propriety oE the patta tendered and strictly speaking, was not for the ascertainment of the rent. Gulam Ghouse Sha Sahib v. Shanmugam Pillai (1911) 34 Mad 438, was also decided under the same Act and does not carry the matter further. On the wording of the article, I am of the opinion that the plaintiff's contention must be upheld. in regard to the rent for faslis 1331 and 1332, a further question arises. The Deputy Collector's judgment in the suit, above referred to, was delivered on 16fch December 1934. He held that the rent claimed by the land-holder and mentioned in tha notice of sale, was excessive. His view was confirmed by the District Judge on 27th February 1926. The question is from which of these two dates does the Statute run. Jusaurn Bold v. Prithiohand Lal AIR 1818 PC 151 seams in my opinion to furnish the answer. The question there was: Does time begin to run under Article 97, Lim. Act, from the date of the adverse judgment against the vendee of the First Court or of the appellate Court? The Privy Council held that the running of time is not postponed by reason of the filing of the appeal. Their Lordships observe:
Both court have held that tha failure of consideration was at tha date of the first Court's decree. Their Lordships feel no doubt that as between these two decrees this 13 the correct view, for whatever may be the theory under other systems of law, under the Indian law and procedure an original decree ianot suspended by presentation of an appeal nor is its operation interrupted where the decree on appeal is one of dismissal.
2. As is remarked in Ramaswami Mudali v. Velayudha Mudali (1868) 4 M.J.C.R. 266 the vendee's appeal from the decree was a voluntary proeeeding taken at his own risk. This view has also been taken in Martand Mahadev v. Dondo Moreshwar AIR 1921 Bom 184. The word 'final' in the article with which we are conoerned shows no more than this: that there being a dispute between the parties, the rent cannot be said to be ascertained till the Court gives its decision and then alona the rent must be taken to have been finally determined. No further effect seema to have bean intended to be given to the word 'final'. The learned Counsel for the zamindar relies upon the following observation in Rangayya Appa Rao v. Sriramulu (1904) 27 Mad 143 to which I have already referred:
Under this procedure it seems clear ihafc as long as proceedings are pending before the Collactos and, on appeal from him, before the civil Courts, the rate of rent is in suspense, for no one can say what it will prove to be.
3. These observations were made with reference to tha facta of that ease. Tha Head Assistant Collector modified fcha terms of the proposed patfaas, but tha District Judge on appeal made additional changes and on further appaal the High Courb again varied the terms; and thus it was by the decree of the High Court alone the rate of rent was finally determined. But in the present case, the District Judge's judgment confirmed that of the lower Court. Whatever may be said where the decree of the original Court is varied or reversed in appeal (on that I express no opinion), I feel no doubt that where, as in the present case the decree is confirmed, the starting point must be held to be the date of the first Court's decree. Kristnamachariar v. Mangammal (1903) 26 Mad 91 (FB), relied on for the plaintiff, is not in point. In the result, I hold that the suit, in so far as it relates to Faslis 1331 and 1332, is barred by time. As regards the direction as to costs, I have an observation to make. The claim for higher rent, which led to the suit under Section 112, was, as pointed out by Mr. Burn, the District Judge, an unfounded one. He says in his judgment that the question of the rate of rant had been decided 'again and again in the Revenue Courts of the District.' The landlord therefore had no justification for claiming a higher rent, and for that reason I desire to deprive him entirely of costs. The lower Court's decree is modified, and I give judgment for the plaintiff only for the rent for Faslis 1333, 1334 and 1336. While the plaintiff shall bear his own costs throughout I direct that he shall pay the defendants proportionate costs on the amount disallowed in all the Courts.