1. Two questions have been raised before us by the learned Counsel for the appellant. 1st, that under the terms of the kabuliat, creating the tenancy between the parties, the landlord is bound to sell the tenure itself in the first instance ; 2nd, that under the provisions of the Rent Law (Bengal Act VIII of 1869) the decree-holder is not entitled to sell any other immoveable property before bringing to sale the tenure itself.
2. As regards the first of these two contentions we are of opinion that it cannot be sustained. The decree was an ordinary decree for rent; and no reference whatever was made in it to the kabuliai or to the terms thereof, and it does not appear that the kabuliat was even filed in the rent suit. That being so, it is not open to the judgment-debtor to go behind the decree, and to insist that the terms of the kabuliat should regulate the rights and liabilities of the parties as regards the mode in which the decree should be realized.
3. The second point is by no mean's free from difficulty. Under the provisions of Act X of 1859, there seems to have been no doubt that such a proceeding as the decree-holder now desires to adopt was unauthorized--see Desarotulla v. Nazim Nazar Ally 1 B.L.R.A.C. 216, and Jokee Lall v. Nursing Narain 4 W.R. Act X 5. But then the question arises whether under Bengal Act VIII of 1869 it is authorized.
4. The learned Government Pleader who appeared for the decree-holder contended that, under Act VIII of 1869, the decree holder was entitled to sell either the tenure or any other immoveable property as he pleased; and in support of his contention he relied upon the decision of the Judicial Committee in the case of Doolar Chand Sahoo v. Lalla Chabil Chand 6 I.A. 47 : 3 C.L.R. 561 and upon the case of Kristo Ram Roy v. Janokee Nath Roy 7 C. 748 decided by a Divisional Bench of this Court.
5. The Divisional Bench which decided that case has put a certain construction upon the abovementioned decision of the Judicial Committee, and it is a construction which is certainly favourable to the decree-holder; and if we were prepared to adopt the same construction, there would be no difficulty in holding that the judgment-debtor's contention must fail. But we entertain doubts whether the result of the Judicial Committee's decision is what it has been held to be by the Divisional Bench. It will be observed from an examination of the case before the Privy Council that the only question that came before it for consideration was what passed under the sale held by the Court on the 25th of July 1872, whether it was the tenure or simply the right, title and interest of the judgment-debtor therein; and their Lordships held that what the decree-holder intended to sell, and what was in fact sold by the Court, was not the former, but the latter. In arriving at this decision they referred, among other matters, to the petition of the decree-holder, and the inventory attached to it, describing the property which he requested to be sold, and also the provisions of Sections 59 and 34 of Act VIII of 1869; and then they observed--'that although the Maharaja (the decree-holder) might, if he had pleased, have applied to sell the tenure in execution of his decree, be had also the power to proceed against the property of the judgment-debtor.' The words' the property of the judgment-debtor' as used by the Judicial Committee in this passage evidently refer to the property described in the decree-holder's petition and inventory, and were not used by them, as we understand, as denoting any property other than the tenure. And we are inclined to think that the question whether it was competent to the decree-holder to sell any other immoveable property than the tenure in the first instance, was not considered by the Judicial Committee, and that it is still an open question.
6. Upon an examination of Bengal Act VIII of 1869, and comparing the several sections thereof, so far they bear upon the matter before us, with the corresponding sections of Act X of 1859, it would appear that, barring the provisions of Section 34 of Act VIII of 1869, the law on the subject was substantially the same under both the Acts; and the question that arises is, whether by reason of that section the decree-holder has the right that is now claimed for him.
7. Section 34 of the Act runs as follows:
Save as in this Act is otherwise provided, suits of every description brought for any cause of action, arising under this Act, and all proceedings therein, shall be regulated by the Code of Civil Procedure passed by the Governor-General in Council in relation to Civil Procedure as now are, or from time to time may be in force and all the provisions of the said Act and of such other enactments shall apply to such suits.
8. The matters for consideration upon this section are : (1st), whether there is any provision in the Act itself regulating the order in which the under-tenure and other immoveable properties belonging to the judgment-debtor should be sold; (2nd) whether the words 'all proceedings therein shall be regulated by the Code of Civil Procedure' confer upon the decree-holder the right of electing to sell, in the first instance, the tenure, or any other property, as he pleases.
9. Upon the two matters indicated above, we are of opinion that there is distinct provision in Sections 59 to 61 and 65 of Act VIII of 1869 indicating that, in the case of a decree for rent accruing upon an under-tenure, the under-tenure should be sold in the first instance before any other immoveable property can be sold; and that, therefore, notwithstanding that it is optional with the decree-holder either to sell the whole tenure under the Rent Law, or simply the interest of the judgment-debtor, as it may exist upon the day of sale, under the Civil Procedure Code, he is bound to follow the order in which the property, upon which the rent has accrued, and other properties belonging to the tenant, may be brought to sale, as indicated in the above sections.
10. In view of the opinion expressed by the Divisional Bench in the case referred to above, we should, had we considered the question raised in this appeal one of general importance and likely to recur, have thought it proper to refer this case to a Pull Bench. But Act VIII of 1869 has been repealed, and an entirely new Act has come into operation, and so we think a reference to a Full Bench is unnecessary.
11. We direct that the order of the District Judge, so far as the sale of the immoveable properties is concerned, be set aside, and that of the Sub-Judge restored.
12. The appellant must have his costs in all Courts.