1. The plaintiff in this case purchased, at a sale in execution of a common money-decree, the judgment-debtor's interest in a certain patni. The defendant holds a darpatni within this patni. Before the plaintiff's purchase, the patni was about to be brought to sale under Reg. VIII of 1819 for arrears of rent for the last half-year of 1284. The defendant, as darpatnidar, prevented the sale by paying the amount of arrears of the patni rent. This amount so paid considerably exceeded all the darpatni rent then due by the defendant to the patnidar. The present suit has been brought to recover the rent of 1285, and the defendant contends that he is entitled to deduct from the rent so claimed the amount so paid into Court by him under the Regulation in excess of the darpatni rent due up to the end of 1284.
2. Both the lower Courts have admitted this contention, and it is now argued before us that, having regard to 'the express language of Clause 4, Section 13 of Reg. VIII of 1819,' such deposit shall not be carried to credit in, or set against, future demands for rent,' the defendant is not entitled to deduct the amount, although he may pursue the remedy allowed by the clause of the Regulation, that is, treat the excess as a loan advanced upon mortgage, and apply to be put in possession of the patni tenure in order to recover the amount so advanced from the profits of such tenure.
3. It has been said that the defendant is seeking to 'set off' this amount against the plaintiff's claim for rent; and that the provisions of the Code of Civil Procedure as to 'set off' cannot apply. 'But it appears to us, that this, is not the proper way of looking at the matter, and that the principle of 'set off' has no application.
4. If we had to construe the language of the clause of the Regulation, we think that it is impossible to read the words such deposit shall not be carried to credit in, or set against, future demands for rent' as standing alone, and intended as a prohibition merely. This construction would be repugnant to the intention of the whole section, which is clearly to enable undertenure-holders to protect their under tenures, and, when they do so by advancing money in excess of the rent due by themselves, to give them ample security for its recovery. The words must be read with the other words which follow-viz., 'but shall be considered as a loan made to the proprietor of the tenure preserved from sale by such means, etc.' And the proper construction to be put upon the whole sentence is probably this, that, in respect of money advanced by the undertenure-holder in excess of the rent due by himself, his remedy is enlarged to meet the exigency of the case. If he could merely deduct the amount from future rent, it might be very questionable if he could do this as against a person who purchased the patni at the following half-yearly sale, or who purchased at an execution-sale; but his security as against either of those purchasers is assured by giving him a lien on the patni and putting him in the position of a mortgagee.
5. Apart, however, from any construction to be put upon the mere language of the Regulation, we think that the Subordinate Judge has taken a very sensible view of the matter. The darpatnidar did apply to be put in possession of the patni tenure. The Collector made an order that he should be put in possession, but he has not succeeded in obtaining possession of the whole portion. There can be no reasonable doubt that if he has not succeeded, the present plaintiff is the person who has prevented him from succeeding, and so far as regards the darpatni, for the rent of which the present suit is brought, we think that the defendant is under the circumstances entitled to say, as against the plaintiff, that he is in possession of the patni-right, which right substantially consists of the very rent claimed in this suit. Qui prior est tempore, potior estjure, who is prior in time is superior in right, is a maxim of equity: and we think that, inasmuch as the defendant, before the plaintiff's, purchase, was, by virtue of the provisions of the Regulation, in the position of a mortgagee entitled to possession for the purpose of realizing the amount advanced by him from the profits of the whole patni, the plaintiff cannot, as against him, enforce an assignment by operation of law without discharging an incumbrance created by law before such assignment.
6. Under these circumstances we think that the decisions of the Courts below are substantially correct, and that this appeal must be dismissed with costs.