B.K. Mukherjea, J.
1. This appeal is on behalf of the plaintiff landlord and it arises out of a suit to recover a sum of Rs. 7056-12-0 as the balance of rent due in respect of a putni tenure which remained unsatisfied after the sale of the tenure under the provisions of Regn. 8 of 1819. The material facts are not in controversy and may be stated as follows: The plaintiff is the present proprietor of a zemindary property bearing Touzis Nos. 5074 and 5089 of the Jessore Collectorate. Under these touzis there is a patni created as early as in the year 1852 reserving an annual rental of Rs. 12,000. The patni changed hands on more occasions than one and the last purchase was by Nagendra Kumar Basu, whose legal representatives the present defendants are, and he purchased the tenure at a Regulation sale on 15th May 1937. Nagendra Kumar Basu died in the year 1938 leaving behind him a will by which his sons, the defendants in the suit, were appointed executors and the latter took out probate of the will in due course. The patni rent for the last six months of 1345 B.S. amounting to Rs. 7656-12-0 having been in arrears, the patni was put up to sale under Regn. 8 of 1819 on 15th May 1939, and it was purchased by the plaintiff zemindar for a sum of Rs. 600 only. As the sale did not wipe out the entire demand the present suit was filed by the plaintiff to recover the balance amounting to Rs. 7056-12-0.
2. The suit was contested by all the defendants and their defence inter alia was that Section 168A, Bengal Tenancy Act, was a bar to the suit and that the plaintiff's claim for the balance of demand after the sale was held under the Patni Regulation was not maintainable in law. The learned Subordinate Judge came to the conclusion that the provisions of the Patni Regulation contemplate that the sale is to be held in liquidation of the full demand and not of a part only and no suit is maintainable in law for recovery of the unrealised balance of a demand for which a patni sale is held. He further held that even if a suit was maintainable, as a decree in such suit could not be executed in view of the provisions of Section 168A, Bengal Tenancy Act, the Court should not pass an infructuous decree of such a character. The result was that the plaintiff's suit was dismissed. It is against this decree that the present appeal has been filed and Dr. Basak appearing on behalf of the appellant has challenged the propriety of the decision of the Court below on both the points mentioned above.
3. So far as the first point is concerned, the question for determination is whether the Patni Regulation expressly or by necessary implication forbids the institution of a suit for realisation of the balance of any demand for recovery of which a sale was held under the regulation itself. Under Section 8, Patni Regulation a zamindar can present an application for the sale of a patni for arrears of rent either on the 1st day of Baisakh or on the 1st day of Kartick of any Bengali year, and sales are held on the 1st day of Jaistha and 1st day of Aghrayan respectively in case the demand is not satisfied before these dates. In the application which is made in Baisakh the arrears of rent that can be demanded are those which accrued for the year just expired while in the mid-year sale the demand would include arrears for the last six months ending with the month of Aswin. Supposing, as in the ease before us, the sale is held in the beginning of Jaistha and the price fetched at the sale does not cover the entire demand for which the sale was held, is the zamindar precluded from recovering the unrealised balance by a suit? In our opinion the answer must be in the negative. The Subordinate Judge in support of the view he took, referred to certain expressions used in Sections 8 and 9, Patni Regulation and relied very much on the proviso to Clause (3) of Section 17 of the same. Section 8, while speaking of the application for sale which is to be presented on 1st day of Baisakh, lays down that the application is to be stuck up in some conspicuous part of the cutchery with a notice that, if the amount claimed be not paid before 1st Jaistha following, the tenure of the defaulter will be sold on that day by public sale in liquidation. Undoubtedly the sale is to take place in liquidation or satisfaction of the demand, but that surely does not mean that if the price fetched does not cover the entire demand, the zamindar must forgo the balance. Section 9 provides inter alia that at the sale every one, who is not the actual defaulter, shall be free to bid, not excepting the person in satisfaction of whose demand the sale may be held. In other words, it empowers the zamindar also to bid at the sale. It is rather surprising that the Subordinate Judge elicits from the words 'in satisfaction of whose demand the sale may be held' an implication that the demand must be deemed in law to have been wiped out and satisfied by the sale irrespective of the price that the sale fetched. Mr. Gupta appearing on behalf of the respondents frankly stated that he cannot support this reasoning of the learned Judge. Mr. Gupta laid some stress on the proviso to Clause (3) of Section 17, Patni Regulation and it is necessary that we should examine this point carefully.
4. Now Section 17 lays down the manner in which the sale proceeds of a patni are to be disposed of after a sale is held under the Regulation. Clause 2 provides that one per cent, of the sale proceeds is to be transferred to the account of the Government for the purpose of meeting the expenses of the establishment which the Government has got to maintain for carrying into effect the provisions of the Regulation. Clause 3 then lays down that the balance, on account of which the sale may have been made, shall next be made good in full to the zamindar or other persons to whom the same may be due. Upon this clause a proviso is engrafted which lays down that no former balances beyond those of the current year or of that immediately expired shall be included in the demand to be satisfied. Such antecedent balances, if the zamindar shall have omitted to avail himself of the process within his reach for having them satisfied at the time, will have become in fact mere personal debts of the individual talukdar, and must be recovered in the same way as other debts by a regular suit in the Court. This proviso only speaks of antecedent balances which are not and cannot be included in the demand, for which the sale was held. The zamindar cannot recover his unrealised antecedent balances either from the surplus sale proceeds or by a fresh process of summary sale directed against the tenure itself, as the purchaser gets the property free of any existing rent charge. His remedy therefore is to sue the defaulter personally for this money. The proviso cannot have any bearing on the question that arises for determination in the present case and it does not say anything either one way or the other regarding the liability of the purchaser to pay the balance of the demand itself if the price fetched at the sale does not cover the amount. We cannot agree with Mr. Gupta that as nothing is said on this point, the implication is that the zamindar cannot realise the balance of the demand even as a personal debt from the defaulter. The entire section, as said already, lays down the way in which the sale proceeds of a putni are to be disposed of. The proviso contemplates that there is a surplus left after meeting the demand for which the tenure is put up to sale and it prevents the zamindar from realising his antecedent balances out of the surplus Sale proceeds, which, as the subsequent clauses indicate, are to be preserved for the benefit of the talukdars of the second degree and other persons who acquired valuable interest in the tenure sold. The utmost that can be said is that there is no provision in the Patni. Regulation itself expressly dealing with the situation which arises when the sale proceeds fall short of the demand. Section 17(3), Patni Regulation, obviously has got no application to such cases and as no fresh sale of the tenure can be held for realisation of the balance, the only remedy of the zamindar must be to) enforce his contractual rights against the tenant. In our opinion, as these rights have not been in any way affected or taken away by the statute, they must be deemed to exist.
5. In the case before us, we have got the patni lease, dated 14th August 1852, by which the patni was created and it contains an express stipulation that in case of default of any payment of rent, the zamindar would have the right to put up the taluk to sale for realisation of six-monthly or twelve-monthly arrears, as the case may be, and if the whole of the arrears are not realised by such sale, the balance would be recovered from other properties, moveable or immovable, belonging to the tenant. The Subordinate Judge says that such a covenant is inconsistent with the provisions of the patni law, and, moreover, it is not a covenant that runs with the land. In our opinion the learned Judge is wrong on both these points. The history and nature of patni tenures are fully set out in the preamble to Regn. 8 of 1819 and in describing the essential incidents of such tenure, the preamble says that the terms of engagements interchanged between the parties generally provide that in case of an arrear occurring, the tenancy would be brought to sale by the zamindar and if the sale do not yield a sufficient amount to make good the balance of rent, the remaining properties of the defaulter shall be further answerable for the demand. Far from being inconsistent with the spirit of the Regulation, a stipulation like the one mentioned above is quite in conformity with it. It is further well established that a covenant relating to payment of rent occurring in a lease is not a mere personal covenant but binds the assignees of the lessee as well. We hold therefore differing from the learned Subordinate Judge that the plaintiff's suit is maintainable and is not barred under any of the provisions of the Patni Regulation.
6. On the second point raised in the suit the decision of the Subordinate Judge is equally unsustainable and Mr. Gupta has made no attempt to support it on that ground. Section 168A, Bengal Tenancy Act, might stand in the way of the decree-holder executing a rent decree in a particular way and whether this section is at all attracted to a particular case can only be decided when the decree is put into execution. It cannot be a ground for refusing to pass a decree that the decree, if passed, could not be executed in a particular manner. The result, therefore, is that the appeal is allowed and the judgment and decree of the Court below are set aside. We are not unmindful of the fact that the patni taluk in this case was purchased by the defendants' father only two years before for a sum of Rs. 20,000 and the price it fetched at the patni sale was undoubtedly very inadequate. It was open to the defendants, however, to take steps to have the sale set aside by depositing the amount due or by any other ways laid down by law. These questions of hardship are not material for our present purpose. The result is that the plaintiff's suit is decreed in full. She will have the costs of the trial Court, there will be no order for costs in this appeal.
7. I agree.