1. This is an appeal by the decree-holder in a rent execution case against an order of the Subordinate Judge of Birbhum passed under the following circumstances : The appellant obtained a decree for rent in Rent Suit No. 2 of 1924 in respect of a sepatni tenure of which he was the landlord. The tenure was sold and a sum of Rs. 7,005 realized. Deducting the plaintiff's claim under the decree, a sum of Rs. 5,267 odd was left outstanding as surplus sale-proceeds in favour of the defendant. The tenure was sold on 15th August 1927 and the sale was confirmed on 17th September 1927. Before the sale of the tenure the plaintiff had instituted another rent suit being Suit No. 12 of 1927 for rent due from May 1925 to May 1927 for Rs. 3,900. The Suit No. 12 of 1927 was decreed after the confirmation of the sale on 17th September 1927 and the appellant attached the sale-proceeds deposited in Court in execution of that decree. In the meantime . the respondent who held a previous mortgage of the tenure from the tenant brought a suit upon the mortgage and obtained a preliminary decree in September 1927 and the final decree in November 1927. On 15th November 1927 the respondent in execution of his mortgage decree attached the sum of Rs. 5,093 out of the sum in deposit in Court as surplus sale proceeds. It should be noted here that for the rent for the period from January 1924 to May 1925 the appellant was paid a certain amount out of the sale proceeds under Section 169, Ben. Ten. Act.
2. Both parties having applied to the executing Court for payment of the surplus sale-proceeds the question that arose between the parties was as to which of them had the claim to the amount. The appellant claimed to have preference over the claim of the respondent on the ground that his decree was a rent decree. The respondent on the other hand claimed that the surplus sale proceeds should be paid to him under Section 73, T. P. Act. The learned Subordinate. Judge examined the claim of both the parties and held that the respondent, mortgagee decree-holder, had the right to the surplus sale proceeds in preference to the appellant. From this order this appeal has been preferred. A preliminary objection has been taken on behalf of the respondent that no appeal lies in this case the order passed by the lower Court being one under Order 21, Rule 58, Civil P.C. The appellant on the other hand contends that the question decided by the Court below was one under Section 47, Civil P.C., and as such is appealable.
3. The question therefore that falls for determination is whether the order appealed from is one under Section 47 and as such open to appeal. Section 47 contemplates questions arising between parties to the suit or their representatives; and it has been argued on behalf of the appellant that the respondent in this case is a representative of the judgment debtor in his rent decree. Now the expression 'representative' in the section has not been defined in the Code, but it has been judicially interpreted in the Pull Bench case of Ishan Chandra Sirkar v. Beni Madhab Sirkar  24 Cal 62 where it has been defined as meaning not only the judgment-debtor's legal representative that is his heir, executor or administrator but it also means his representative-in-interest and includes the purchaser of his interest who so far as such interest is concerned is bound by the decree. The question as to when a party may be said to be bound by a decree has been decided in a number of cases. The view that prevailed for a long time was as expressed in W. Sheriff v. Dina, Nath Mukherjee  12 Cal. 258 that a lessee, purchaser mortgagee or transferee since the decree is a representative of the judgment-debtor within the meaning of Section 47. But the Pull Bench case of Ishan Chandra Sircar v. Beni Madhab Sirkar  24 Cal 62 has given it a wider meaning as including a person who may by operation of law or in fact be bound by the decree though his interest had accrued previous to the decree : see the case of Surendra Narain Singh v. Gopi Sundari Dasi  32 Cal. 1031.
4. In the present case the fact which has to be borne in mind is that the decree for rent obtained by the appellant, in execution of which he has attached the surplus sale-proceeds was obtained after the sale of the tenure. There is no direct authority on the point as to whether the holder of a decree for rent after the sale of the tenure in execution of another decree for rent is a person who ... can claim a first charge upon the, surplus sale proceeds. But there is authority for holding that if a decree for rent was obtained before the tenure was sold in execution of another rent decree the charge created by law on the holding would be transferred to the surplus sale proceeds. The point was elaborately considered in Basanta Kumar Bose v. Khulna Loan Company 26 I.C. 197. That was the case of the sale of a patni and the question had to be considered with reference to the special provisions of the Patni Regulation. The landlord there had obtained a decree for rent before the sale of the patni by the Collector and it was held that the decree having been obtained before the sale, the landlords' claim for rent must be taken to attach to the tenure and became a first charge under Section 65, Bengal Tenancy Act. In the judgment it appears that a great point was made of the fact that the decree was obtained before the sale of the tenure. This was followed by Nalini Ranjah Chatterjee, J., in Sattya Shanhar Ghosal v. Monmohan Guha  43 I.C. 996. The other learned Judge (Smither, J.), who was a member of the Bench was of opinion that on a proper construction of Section 17 of the Regulation the landlord's, claim for rent though he had obtained a. decree therefor before the sale of the patni was a mere personal claim against the outgoing tenant.
5. It is not necessary for our present, purpose in this case to adopt the view of the law laid down in Basant Kumar's case  26 I.C. 197 though personally I am not satisfied with it and must reserve my opinion for further consideration. In this case the decree was obtained after the sale of the tenures. It cannot be disputed that in execution of this decree the tenure cannot be sold again and the purchaser at the previous auction sale purchased it free from the liability for rent for previous years: pran Gour Mazumdar v. Hemanta Kumari Debya  12 Cal. 5970, Mathura Mohan Saha v. Nalin Chandra Dutt  34 I.C. 180. The decree for rent obtained by the landlord after the sale of the tenure in execution of another decree can only create a charge upon the holding or on the sale proceeds thereof representing the holding if it can be asserted that such a decree is a decree under Chap. 8, Bengal Tenancy Act. As to what kind of decree would be a decree under Chap. 8 and create a charge on the tenure or the sale-proceeds thereof came up for consideration before the Judicial Committee in the casa of A. H. Forbes v. Mahraj Bahadur Singh A.I.R. 1914 P.C. 111. The facts of that case were no doubt different. There the landlord had lost his interest in the tenure before he brought a suit for rent for a portion of the period during which he was the Landlord and obtained a decree thereupon, tt was held that as the landlord had lost his interest at the time when he obtained the decree, it cannot be said to create a first charge under Section 65, Bengal Tenancy Act.
6. But some observations which were made by the Judicial Committee in order to come to the conclusion at which they arrived, may be of some assistance in deciding the question before us. They minutely discussed the various provisions of the Bengal Tenancy Act and laid down the principle underlying Section 65 of the Act and observed as follows:
The governing idea throughout the multifarious provisions contained in Chap. 8 to regulate the respective rights and obligations of landlords and tenants is the subsistence o the relationship that gives rise to those rights and obligations.
7. Applying this observation to the facts of the present case it would appear that on the date when the decree was obtained the relationship of landlord and tenant between the appellant and the outgoing tenants had ceased to exist. But it is argued that when the suit for rent was brought the rent was the first charge on the holding. On this point their Lordships made another observation, namely that the High Court whose decision they reversed were of opinion that as soon as rent falls into arrears, the tenure becomes ipso facto hypothecated so to speak for the debt. This view of the law seemed to thoir Lordships to be untenable; but fcho ground in support of this view was that Section 65 was created in favour of the landlord. It is difficult to say that as soon as rent falls into arrears or a suit for rent is brought it becomes a first charge and attaches to the holding. It is only when the time for enforcing the claim for rent comes that Section 65 becomes active and gives the landlords' claim preference over any other claim on the tenure. On a consideration of the reasoning adopted by their Lordships in Forbes case, I am of opinion that the decree obtained by the appellant in this case, after the tenure was sold was not a decree under Chap. 8, Bengal Tenancy Act, atid therefore it was not a charge on the surplus sale proceeds.
8. Now suppose, if the appellant brought a suit for arrears of rent after the property had been sold and obtained a decree thereupon, could it be said that such a decree would be a decree under Section 65? I submit not. It makes no difference in principle whether the suit was brought before or after the sale of the tenure. The charge created by Section 65 would only attach when the landlords' claim is established under Chap. 8, Bengal Tenancy Act, i.e. when the decree was obtained during the continuance of the relationship of landlord and tenant between the parties. On all these considerations I am clearly of opinion that the decree obtained by the appellant after the sale of the tenure did not create a charge on the tenure on the sale proceeds as representing the tenure. It was obtained at the time when the relationship of landlord and tenant between the parties had ceased. The result is the same whether the landlords' interest was transferred before he obtained the decree or the defendant ceased to be the tenant before the decree was obtained. That being so, in my judgment the respondent is not a person who is bound by the decree and therefore is not a 'representative' within the meaning of Section 47, Civil P.C. That being so the only provision of the law under which the order passed by the lower Court could have been made is Order 21, Rule 58, Civil P.C., and there being no appeal from that order this appeal is incompetent. It is therefore dismissed with costs four gold mohurs.
9. It is to be clearly understood that our order will not in any way affect the appellant's right, if he has any, under Section 169, Bengal Tenancy Act, or any other provision of the law.
10. I agree.
(Their Lordships in view of the above order dismissed Revision 894 of 1928).