1. In this case the plaintiff, having obtained a decree against the Official Assignee for arrears of rent due on a patni tenure, attempted to sue out execution by attachment and sale of the tenure for which the arrears are due. The Official Assignee objected and stated that the landlord was not entitled to sell the tenure, but must come in like any other creditor. Neither of the Courts state whether the arrears said to have been due accrued before the property of the insolvent vested in the Official Assignee, or while it was under his charge. If the Official Assignee neglected to disclaim or get rid of the lease, he would become liable for the rent due after the property of the insolvent debtor vested in him. This is clear from Ex parte Davis L.E. 3 Ch. D., 463 and Ex parte Dressler L.R. 9 Ch. D., 252 But even if the arrears were due from the insolvent before he took the benefit of the Insolvent Debtors' Act, we think that the landlord was entitled to sell the tenure. This very point was raised before the Madras High Court in the case of Chinna Subbaraya Mudali v. Kandaswami Reddi I.L.R. 1 Mad. 59. Mr. Justice Holloway, who delivered the judgment of the Court, said 'It appears to me no interest in the particular property in question vested in the Official Assignee by the vesting order. The interest of the potta-holder is one dependent upon his payment of rent, and if he does not pay, his right to hold ceases and becomes saleable for whatever it is worth for the arrears. It is a case of a contract, a contract of letting, and the Official Assignee must have expressed his election to take it and must have taken it cum onere, otherwise he acquired no right or interest in the land.' In this view we concur, and we think that the lower Court was wrong in not allowing the under-tenure to be sold.
2. The appeal is allowed with costs. The case will go back to the lower Court with a direction to proceed with the execution.