1. This appeal has arisen out of a suit for rent. The plaintiffs, who are the appellants, ask for a decree for interest at a rate higher than what is allowed by Section 67, Ben. Ten. Act, on the basis of a stipulation contained in the kabuliyat, which created a permanent mokarrari lease in a permanently settled estate under a permanent tenure-holder and is dated 1283 B.S. The Courts below have allowed interest at 12 per cent per annum. The suit was instituted on 15th April 1929, that is to say, after the date when the amending Act came into force. The claim was for 1332 to 1335, the major part of the claim being for a period antecedent to that date.
2. Prior to the amendments, the clause as to interest was a clause of Sub-section (3), Section 178. From the position it then occupied, it meant that a rate of interest in excess of what is provided for in Section 67 was not affected by the provision of that section, if the rate was in a contract made before the passing of the Act in 1885. As a consequence of the amendments, the clause now finds a place in Sub-section (1), Section 178, and means that such a rate cannot affect Section 67, whether it be embodied in a contract made after or in a contract made before the aforesaid date in 1885. Section 179 is an exception to all the provisions of the Act to which it may serve as an exception, and accordingly to Section 178. The present case satisfies the requirements of Section 179, so far as the status of the parties and the character of the lease is concerned. The lease in the present case is therefore a good lease upon the plain meaning of the substantive part of Section 179. But then there is the proviso to Section 179 which has to be considered. That proviso says-I read such portion of it as has any bearing on the question of interest:
Provided that such holder.shall not be entitled to recover interest at a rate exceeding that set forth in Section 67..
3. The plaintiff has sued to recover interest at a rate exceeding the rate given in Section 67. The proviso disentitled him from recovering such interest. This is the conclusion which, in my judgment, follows from a plain reading of the different section to which I have referred. But there are several other matters which I have been asked on behalf of the appellant to consider.
4. It has been argued that the amendments made as regards abwab stand in the way of such an interpretationbeing given to the statue. IN sub-section (3), Section 74, which makes, in respdect of abwab, an exception, in terms very much alike Section 179, the words 'and registered before the commencement of the Bengal Tenancy (Amendment) Act, 1928,' have been added, By this amendment, stipulation as t abwab in respect of such leases, if made in leases registered before the commencement of the amending Act of 1928, were saved. Besides there has been from 1919 a proviso to Sub-section (1), Section 74, creating an exception in favour of contracts registered before the amending Act of 1919. The amendments in Section 77 need not detain us; certain fees realized are to be deemed under that section to be abwab. The proviso to Section 179, so fare as it relates to abwab, reads thus:
Provided that such proprietor or holder shall not be entitled to recover *** anything that is an abwab or the recovery of which is illegal under the provisions of Section 74 or Sub-section (3), Section 77.
5. There is no doubt some difficulty in reconciling the proviso to Section 179 with Sub-sections (1) and (3), Section 74, but perhaps the difficulty is not insuperable. But whatever that may be, and this is a matter on which I am not called upon nor do I propose to express any definite opinion here-that difficulty cannot create for interest a reservation or exception that is not to be found anywhere in the Act. I do not understand how, even if there is a difficulty in reconciling the provisions as to abwab, such difficulty should lead us to imagine that the proviso to Section 179 is to be applied.
6. It has next been argued that the amendments of 1928 came into force after the major part of the interest became due, and that, in the view that portion of the interest has already ripened into a debt, the amendments cannot affect that portion of the interest. In other words it has been argued that interest which had already accrued cannot be lost to the landlord by reason of the amendments. To this contention in my opinion, the answer is that such interest had not been recovered; ad when it comes to a question of its recovery the proviso to Section 179 will stand in the way. The word 'recover' has a definite meaning, namely, the ordinary meaning of recovery by suit : see Ram Kumar Jugi v. Jafar Ali (1898) 26 Cal 199 n. and Sitanath Midda v. Basudeo Midda (1900) 2 CLJ 540.
7. Some other arguments have also been addressed to me based on suppositions as to what must have been the intention of the legislature. I should content myself with saying that whatever its intention might have been what it has said is, in my judgment, capable of no other interpretation that what I am inclined to put upon the provisions. The Courts below, in my opinion, have taken the right view of the matter. The appeal is dismissed with costs.
8. There is an application filed in the alternative for revision of the orders complained of in this case if it be held that no second appeal is competent. On the view that I have taken of the merits of the case, it is not necessary for me to consider the question of the maintainability of the appeal. The application for revision is also dismissed.