1. The petitioner is the holder of a tenure under a patni tenure. In 1309 in consequence of a default by the patnidar the petitioner deposited the patni rent in order to save his tenure and was put in possession of the patni under Section 13 of the Patni Regulation to discharge his lien. The interest of the superior landlord was subsequently transferred and in May last the pa'm was sold at the instance of the new landlord, inspite, the petitioner says, of his having deposited the amount due as patni rent. The petitioner has brought a suit to have the patni sale set aside and pending suit applied for an injunction to restrain the opposite party, the purchaser of the patni, from taking possession.
2. The Munsif issued an injunction as prayed, but on appeal the District Judge ordered the injunction to be dissolved on the opposite party depositing, as she offered to do, the amount still due to the petitioner out of his original deposit, which he says has not yet been realised. The petitioner has obtained this Rule calling on the opposite party to show cause why the District Judge's order should not be set aside and why an injunction should not issue.
3. The grounds urged in support of the application are shortly that the petitioner has been in possession of the patni ever since 1909, that the balauce of convenience is in favour of his being retained in possession, because not only has he not succeeded in fully collecting rent from the tenants, but as he has been paying the superior landlord's rent for a number of years he has to recoup himself for such payments, which amount to something like Rs. 10,000, and he is entitled to retain possession of the pitni until he has recouped himself, and finally, that if he succeeds in his suits he will be very much embarrassed and there will be a serious complication of accounts if he is dispossessed now.
4. The last argument may be applied with equal force if the opposite party is successful in the suit. She has already been kept out of possession for nearly a year since her purchase and will shortly again have to pay the patni rent, while up to date she has had no return on her purchase money
5. Prima facie the petitioner's rights have been secured by the order which the learned Judge has made, Under Section 13 of the Patni Regulation the defaulter can recover his tenure on re-payment of the advance made with interest, or on proof that the advance has been realised from the usufruct. But an attempt has been made, relying on the provision in Clause 4 of Section 13, to the effect that the person making the advance has a lien as if the loan had been made on mortgage, to establish the position that the person making the advance is entitled to add to his demand the rent paid to the superior landlord for the years during which he has been in possession. The argument is based on Section 72 of the Transfer of Property Act, which declares the right of a mortgagee ,to take the necessary steps to preserve the mortgaged property. An exactly similar attempt to add payments on account of the patni rent to the debt was made in the case of Lala. Bharub Chandra Karpur v. Lalit Mohun Singh(1) 12 0. 185 : 6 Jnd. Dec. (N. S.) 126. and proved unsuccessful. It is argued for the petitioner that the incidents which gave He to that suit occurred before the passing of the Transfer of Property Act, and, therefore, that decision must he taken to rave been modified by Section 72 of the Act. I am not aware that that Section has given a new power to the mortgagee in possession, and the same view of Section 13 of the Patni Regulation was taken in Ramjiban v. Taj-ud-din (2) 9 Ind. Cas. 489 : 15 C. W. N. 404. and Jakhomull Mehera v. Saroda Prosad Dey 3.
5. For the purposes of this Rule it is not necessary to say more. I must, however, guard myself from being understood to hold, because I have dealt with the merits, that the application is maintainable under Section 115, Civil Procedure Code. The opposite party objected that it was not, but in the view which I take of the merits of the application it is unnecessary to express any opinion on that point.
6. I think the Rule should be discharged with costs five gold mohurs.
7. I agree.