N.R. Chatterjea, J.
1. The main question involved in this appeal is whether in the case of a patni talak being sold in execution of a decree for rent under the provisions of the Bengal Tenancy Act, the zemindar has a first charge on the surplus sale-proceeds in respect of decrees for rent for earlier periods.
2. It appears that the defendants-appellants who are the zemindars obtained a decree for rent against the patnidars for the years 1303 to 1306 on the 26th June 1900 for Rs. 4,792. Then on the 11th July 1904 they obtatned another decree for Rs. 2,368 for the years 1337 to 1309 and a third decree for Rs. 8,763 for the years 1309 to 1312 on the 29th April 1909. The patni taluk was sold in execution of the third decree, dated the 29th April 1909, free of all incumbrances and purchased by one Durga Charan on the 11th March 1910 for Rs. 40,150 and the sale was confirmed on the 13th May 1910. The defendants appropriated out of the sale-proceeds Rs. 10, 626 due to them under the third decree and also Rs. 1,229, being the rent due from the date of the last suit up to the date of the confirmation of sale. The defendants then attached the surplus sale proceeds to the extent of Rs. 5,549-3-0 and Rs. 3,583-4-3 in execution of the two previous rent decrees. The plaintiffs were purchasers of one of the three mouzahs comprised in the patni taluk, and they brought the suit out of which this appeal arises for a declaration that they are entitled to a proportionate share of the surplus sale-proceeded held in deposit in Court. The zemindar defendants pleaded that they have a first charge on the surplus sale-proceeds in respect of two previous rent decrees. The Court below decreed the suit and the zemindar defendants have appealed.
3. Before dealing with the main question involved in the appeal I will deal with the contention raised on behalf of the respondents, viz., that a patni tenure cannot be sold at all under the provisions of the Bengal Tenancy Act, in other words, that it cannot be sold (for enforcing the rent charge) except under the summary process as laid down by the Patni Regulation. It is contended that the Regulation fixes the process by which patni tenures are to be brought to sale and the form and manner of conducting such sale, and that therefore that is the only manner in which a patni tenure can be sold for arrears of rent. But the Regulation shows that it was enacted for defining the relative rights of zemindars and patnidars and for prescribing a summary process for recovery of rent. It is true the Word 'summary' is not used in the Regulation, but the process cannot but be a summary one when proceedings are taken on ex parte statements of the zemindar, and without taking evidence. The Regulation does not take away the rights of the zemindar to proceed in the ordinary way under the general law to recover arrears of rent, it only gives him an additional right to recover rent by a summary process of sale. The Patni Regulation hag been in force for nearly a century. Patni tenures are sold every day under the provisions of the Bengal Tenancy Act and no objection has ever been raised that a patni tenure cannot be sold under the provisions of that Act. If any authority were needed, I might refer to the case of Brindabun Chunder Sircar chowdhry v. Brindahun Chwder Dey Chowhhry 1 I A. 178 : 13 B.L.R. 408 : 21 W.R. 324 : 3 Sar. P.C.J. 365 where a patni tenaro was sold in execution of a decree for rent under the general law (under Section 105 of Act X of 1859) and the Judicial Committee had to consider whether the sale was free of incumbrance, viz., a dar-palni tenure.
4. Turning to the main question in the case, and leaving aside for the moment the nature of the charge and the manner in which it must be enforced, there can be no doubt that under Section 65 of the Bengal Tenancy Act, rent is a first charge on a tenure. It is contended, however, that so far as patni tenures are concerned there is no first charge for rent except for rent of the current year or of that immediately expired, if the sale be at the commencement of the following year, and that the provisions of the Bengal Tenanoy Act in so far as they militate against the provisions of the Patni Regulation are inoperative, as expressly laid down in Section 195, Clause (e) of the former Act. Reliance is placed on the provisions of the third clause of Section 3 and the 3rd Clause of Section 17 of the Regulation, in support of the contention that the rent is not a first charge on a patni tenure except for the period of one year. Section 8, Clause 3, says that the tenure shall be 'sold by public auction and the. holder of the tenure will be entitled to any excess in the proceeds of such sale beyond the amount of the arrear of rent due subject, however, to the provisions contained in Section 17 of this Regulation;' and the third clause of Section 17 provides that the 'former balance', that is, the balance due for a period earlier than the year immediately expired of the current year, as the case may be, is not to be included in the demands of the zemindar to be satisfied from the sale proceeds. It is argued that under Section 3, Clause 3, and Section 17, Clause 3, of the Patni Regulation the zemindar's first charge for his rent is restricted only to the arrears of one year, and that a substantive right is conferred upon the patnidar to the surplus sale-proceeds after satisfying the zemindar's demand only for the period limited, as above, and Section 65 of the Bengal Tenancy Act, which gives a first charge to the zemindar beyond the period so limited, necessarily affects the provisions of the Patni Regulation, and is, therefore, inoperative having regard to the provisions of Section 195, Clause (e), of the Bengal Tenancy Act. But in the first place, I think rent is a first charge under the Patni Regulation as well as under the Bengal
5. Tenancy Act, and there is no confect between the two so far as the question whether rent constitutes a first charge on the patni is concerned. The proviso to the 2nd Clause of Section 3 of the Regulation lays, down that no engagements (by the patnidar with his subordinate talukdar) shall operate to the prejudice of the right of the zemindar to hold the superior tenure (i.e. the patni) answerable for any arrear of his rent in the state in which he granted it, and free of all incumbrances resulting from the act of his tenant. Section 11, Clause 1 (2nd paragraph), says that no transfer by sale, gift or otherwise, no mortgage or other limited assignment by the patnidar shall be permitted to bar the indefeasible right of the zemindar to hold the tenure of his creation answerable in the state in which he created it for the rent, which is in fact his reserved property in the tenure, 'except the transfer or assignment should have been made with a condition to that effect under express authority obtained from the zemindar, and the second clause says that all under leases originating with the patnidar, if creative of a middle interest between the resident cultivators and the late proprietor, must be considered cancelled (unless the authority to grant them should have been specially transferred) and the possessors of such interest must consequently lose the right to hold possession of the land and to collect the rents of the raiyats, this having been enjoyed merely in consequence of the defaulter's assignment of a certain portion of his own interest, the whole of which was liable for the rent.' Section 15, Clause 2, provides for the issue of a proclamation declaring that the new incumbent, having by purchase at a sale for arrears of rent due to the zemindar, acquired the entire rights and privileges attaching to the tenure of the late talukdar 'in the state in which it was originally derived by him from the zemindar,' he alone will be entitled to make the zemindari collections in the mofussil . It is true Sections 11 and 15 lay down the rights accruing to a purchaser at a sale under the Patni Regulation, but they at the same time show that the rent is a first charge on the tenure. In any case the proviso to the 2nd Clause of Section 3 unmistakeably shows that rent is a first charge. That clause declares a substantive right and is independent of the particular procedure which may be adopted for realizing the rent. Section 65 of the Bengal Tenancy Act, therefore, which gives a first charge to the landlord for his rent does not confer any right upon the zemindar which the latter does not possess under the Patni Regulation, and that being so, the Bengal Tenancy Act does not affect the Patni Regulation, so far as the question of charge is concerned.
6. In the next place, I think that the provision of Section 17, Clause 6, viz., that the former balances beyond those of the current year (or of that immediately expired if the sale be at the commencement of the following year) will be mere personal debts of the patnidar, applies only when the patni is sold under the Patni Regulation. It is contended that Section 3, Clause 3, of the Regulation speaks of 'sale by public austion' without any qualification and confers a right upon the patnidar to the surplus sale-proceeds after satisfying the demand of the zemindar for one year only, which cannot be taken away by a sale under the Bengal Tenancy Act. But the words 'sale by public auction' in Section 3, Clause 3, of the Regulation evidently refer to the summary sale under the Patni Regulation, which alone is dealt with by it. The provisions of that section or of Section 17 have nothing to do with a sale where it is held under the general law. It is only where the zemindar proceeds to recover arrears of rent not exceeding one year that he can avail himself of the summary sale under the Regulation and the provisions of Section 17, Clause 3, apply to such a case only. The summary process under the Regulation, as stated above, is held on the ex parte statements of the zemindar without taking any evidence, and is, therefore, restricted to the recovery of rent of only one year. Where, however, the zemindar proseeds to realize rent under the general law (i.e., the Bengal Tenancy Act) his rights are not restricted by the provisions of Section 17 of the Regulation. The Regulation provides for a summary sale only and in so far as such a sale is concerned, the provisions of the Bengal Tenancy Act cannot affect such sales or the provisions relating to the distribution of the sale-proceeds as laid down in the Regulation.
7. With regard to sales under the general law, there is no inconsistency between the provisions of the Bengal Tenancy Act and the patni Regulation because the latter has nothing to do with such sales, and the Bengal Tenancy Act supplements the provisions of the Regulation in matters not dealt with by it.
8. The question whether a decree for rent is a first charge on the surplus sale proceeds of a patni tenure was considered in the case of Basant Eumor Bose v. Khulna Loan Company 26 Ind. Cas. 197 : 20 C.L.J. 1 : 19 C.W.N. 100. There the zemindar obtained a decree for rent for a certain period, and then put up the patni tenure for sale under the Patni Regulation for the rent of a subsequent period. The question was whether the decree for rent previously obtained was a first charge on the surplus sale-proceeds. It was argued in that case, with reference to the provisions of Section 17 of the Regulation, that the antecedent balances should not be deemed a charge upon the sale-proceeds which represent the property after the sale has taken place, and that the effect of the Regulation sale is to destroy the charge which the zemindar previously had upon the property in respect of all arrears of rent. The learned Judges referred to the difference of judicial opinion in the cases of Peary Mohan Mukhopadhya v. Sreeram Chandra Bose 6 C.W.N. 794 and Jogonath v. Mohi-ud-din Mirza 6 Ind. Cas. 371 : 37 C. 747, on the question whether there is any conflict between Section 65 of the Bengal Tenancy Act and Section 17 of the Patni Regulation, and without deciding the question held that the second paragraph of the third clause of Section 17 contemplated a case in which a regular suit had to be brought for the recovery of the antecedent balances as the personal debt of the patnidar, and, therefore, could not possibly apply to that case where a decree for rent had already been obtained before the sale under the Patni Regulation took place, and that the patni sale did not destroy the character of the decree previously obtained as a rent-decree. It is contended before us on behalf of the respondents that in that case the provisions of the fourth clause of Section 17, viz., that any excess of the sale-proceeds after satisfying the demand of the zemindar in the manner described in the third Clause (vie., the arrears of the Current year or of the previous year, as the case may be) shall be forthwith sent to the Treasury to be there held in deposit to answer the claim of the talukdars of the second degree or of others who by assignment of the defaulter may be at the time in possession of a valuable interest in the patni, were overlooked, and that the fourth clause is conclusive to show that the surplus sale-proceeds are not available to the lemindar for decrees for antecedent balances. It is unnecessary to consider in this case whether the zemindar has a first charge in respect of decrees for antecedent balances upon the surplus sale-proceeds when the zemindar sells the patni tenure under the provisions of the Regulation. In the case nf Jogonath v. Mohi-ud-din Mirta 6 Ind. Cas. 371 : 37 C. 747 it was held having regard to the provisions of Section 17, Clause 3, of the Patni Regulation that Section 65 of the Bengal Tenancy Act does not give the zemindar a first charge on the surplus sale-proceeds for antecedent balances, and the learned Judges did not agree with the view taken in the case of Peary Mohan Mukhopadhya v. Sreeram Chandra Bose 6 C.W.N. 794 that there was no conflict between Section 65 of the Bengal Tenancy Act and Section 17, Clause 3, of Regulation VIII of 1819. The sale in the case of Jogonath v. Mohi-ud-din Miria 6 Ind. Cas. 371 : 37 C. 747 however, was held under the Patni Regulation, and the learned Judges in that case themselves distinguished the case of Peary Mohan Mukhopadhya v. Sreeram Chandra Bose 6 C.W.N. 794, on the ground that in the latter case the patni was sold under the Bengal Tenancy Act, and not under the Patni Regulation.
9. It may be conceded that the temindar has no right to recover the antecedent balances or to enforce his charge under a rent decree against the surplus sale proceeds when ha chooses to adopt the summary process under the Patni Regulation. But if the zemindar has a first charge, as I think he has, both under Section 65 of the Bengal Tenancy Act and under the Patni Regulation, does he forfeit his right to enforce that charge against the surplus sale-proceeds to which the patni is converted even though he sells the tenure under the provisions of the Bengal Tenancy Act? The Bengal, Tenancy Act does not contain any provision similar to that contained in the third clause of Section 17 of the Regulation. If the zemindar has a first charge for rent both under the Bengal tenancy Act and the Regulation, although such charge in respect of antecedent balances may not, having regard to the provisions of Section 17 of the Regulation, be enforced against the surplus sale proceeds when the patni is sold in a summary way under the Regulation, there is no reason why the zemindar should lose such charge under a decree for rent when the patni is sold under the Bengal Tenancy Act.
10. The next question is, what is the nature of the charge which the landlord has under the Bengal Tenancy Act upon the tenure, The appellants contend that it is a charge which can be enforced by sale of the tenure, but as the tenure has already been sold, under the Patni Regulation, it cannot be again sold for arrears of rent of an earlier period [see Musammat Lutifun v. Shaikh Mean Jan 6 W.R. 112 and Prangour Mazoomdar v. Himanta Kumari Debya 12 C. 597 : 6 Ind. Dec. (N.S.) 405], and the charge is, therefore, transferred to the surpuls sale-proceeds. On the other band it is contended on behalf of the respondents that the first charge which the landlord has under Section 65 of the Bengal Tenancy Act can be enforced only under the provisions of Chapter XIV of the Act, and not in any other way and that where that remedy is not open to the landlord by reason of the tenure having been already sold away under the Patni Regulation, the charge cannot be enforced against the surplus sale-proceeds, and reliance is placed on the cases of Soshi Bhusun Guha v. Gogan Chunder Shaha 22 C. 364 : 11 Ind. Dec (N.S.) 244 and Arthur Henry Gorbes v. Maharaj Bahadur Singh 23 Ind. Cas. 632 : 41 C. 926 C.L.J. 434 :18 C.W.N. 747 : (1914) M.W.N. 397 15 M.L.T. 380 : 12 A.L.J. 653 : 27 M.L.J. 4 : 1 L.W. 1059 : 41 I.A. 91 (P.C.). These cases, however, are distinguishable. In the, cost case it was held that an assignee of a decree for rent to whom the reversion had not been transferred cannot avail himself of the charge under Section 65 of the Bengal Tenancy Act. It is true in the last but one paragraph of the judgment the learned Judge observed that 'the charge tinder Section 65 of the Act should be enforced by the sale of tenure or holding free of in. cumbrances under Chapter XIV of the Act, and if in any case the decree for rent either has not been or cannot be enforced by the sale of the tenure we do not think that the charge created by Section 65 can be enforced in any other way.' These observations, however, must be taken to have been made with reference to the question which they had to consider in the case, viz., whether an assignee of a decree for rent can enforce the charge. As soon as a decree for rent is assigned to a stranger the charge ceases to exist, and the assignee can enforce the decree only as a money decree, and that is all that the Court decided in that case. In Arthur Henry Forbes v. Afraharuj Bahadur Singh Appeal from Original Decree No. 302 of 1911 decided on the 12th May 1913 it was held by the judicial Committee that a decree for arrears of rent obtained by a zemindar against the patnidar after the former had parted with all his interest in the zemindari, is not a decree for rent within the meaning of Section 65 of the Act, and that the right to bring the tenure to sale attaches to the status of the decree-holder qua landlord, and exists so long as the relationship of landlord and tenant exists. All that was decided in that case was that the charge created by Section 65 is in favour of the landlord only, and that a stranger to the landlord's interest cannot claim the charge on the ground that the decree was for arrears of rent.
11. The respondents, however, rely upon some observations in the above cases to show that the charge for rent which the landlord has under Section 65 of the Bengal Tenancy Act can be worked out only by sale of the tenure under Chapter XIV of the Act. That no doubt is the manner in which the charge is to be enforced so long as the tenure has not been sold away, but the seminar cannot in the present case execute the decree in the manner laid down in Chapter XIV of the Act, because the tenure having been once sold for its own arrears passed to the purchaser free of the charge of the landlord under the rent decrees, and cannot be sold' again. The question, whether the zemindar is entitled to enforce his charge against the surplus sale-proceeds after the tenure is sold, did not arise nor was considered in either of the two oases. As already stated, the observations made in those eases must be taken to have been made with reference to the facts of those oases and the questions which arose for consideration. If the respondents' contention that the charge can not be enforced against the money to which the tenure is converted by the sale is forest, the; emindar would lose his charge and cannot enforce it against the amount awarded as compensation under the Land Acquisition Act in a case where the patni is acquired under that Act.
12. The charge which the landlord has for his rent upon a tenure is no doubt of a somewhat peculiar character, but if the rent constituted a charge on the patni when it was sold, the zemindar did not lose the charge by selling the tenure. He cannot sell the tenure again, and under the circumstances I do not see why he cannot enforce the charge against the surplus proceeds of the sale to which the tenure is converted. Even if Section 73 of the Transfer of Property Act is not applicable to the present case, the principle embodied in that section is a principle of justice, equity and good conscience, and I think that where the property upon which there is a charge is not available, the charge should be allowed to follow the sale-proceeds of the property. Section 73 of the Transfer of Property Act would not apply to a case where a patni is acquired under the Land Acquisition Act, but the landlord would have a first charge upon the compensation awarded under the Act, upon the same principles.
13. The charge which the landlord has in respect of his rent is not one created by law under Section 100. It is a statutory charge and is different from an ordinary charge created by law. In an ordinary mortgage, the mortgaged cannot foreclose without making all persons interested parties and giving them opportunity to redeem, but a landlord can enforce his charge against the registered tenants without making all the persons interested in the tenure parties. An ordinary change cannot be enforced against a bona fide purchaser without notice but that principle does not apply to a charge under a rent decree.
14. It is contended that it the decree constituted incumbrances on the tenure, the incumbrances did not cease to exist as the purchaser of the patni did not annul the incumhrances as required by Section 167 of the Bengal Tenancy Act. But the charge under the rent-decree was not an incumbrance within the meaning of Section 161 of the Bengal Tenancy Act and cannot be annulled. It is a charge which can be enforced against the tenure, and when the tenure is sold for arrears of rent and cannot be enforced against the tenure itself, the charge must follow the sale-proceeds. I am accordingly of opinion that the plaintiffs have a first charge in respect of the two earlier decrees over the surplus sale-proceeds. The question raised in the present ease was raised in the unreported case of Kumar Satya Sanhar Ghosal v. Altapcmnessa Bibi Appeal from Original Decree No. 302 of 1911 decided on the 12th May 1913. That was a case relating to the right to the surplus sale-proceeds of the very patni taluk between certain mortgagees of the patni and the zemindars. It was held by Stephen and Mullic, JJ., that the two earlier rent-decrees did melt constitute a first hearse. The learned Judges held that the rent in respect of which the landlord has a first charge is the rent-decree of which execution is taken out and does not include rent decreed in suits with which the execution is not concerned. They further held that ' although by Section 100 of the Transfer of Property Act read with Order XXXIV of the Civil Procedure Code it may be that the appellant had a charge on the property, it does not follow that the appellants are in the position of mortgagees within the meaning of Section 73 of the Act. The appellants do not possess all the rights of a mortgagee but only those defined in Sections 81 and 82 and eueh other rights as are subservient to the right to bring the mortgaged property to sale. This view is in accord with Fotich Chunder Dey Sircar v. E.G. Foley 15 C. 492 : 7 Ind. Dec. (N.S.) 912 and sashi Bhusun Guha v. Gogan Chunder shaha 22 C. 364 : 11 Ind. Dec (N.S.) 244.
15. I regret 1 am unable to agree with the view taken by Stephen and Mullick, JJ. I have discussed the first point. As regards the question of charge, I think the learned Judges took a narrow view of the nature of the charge which a landlord has with respect to rent on a tenure. On principle I think that a charger ought to have the same privileges as a mortgagee, and even if Section 73 of the Transfer of Property Act does not apply, the principle of the section should be held to apply. The view taken by the learned Judges is opposed to that taken by Mookerjee and Carnduff, JJ., in Basant Kumar Bose v Kkulna Loan Company 26 Ind. Cas. 197 : 20 C.L.J. 1 : 19 C.W.N. 100, and with which I agree so far as the question which has been raised before us is concerned. The decision of Stephen and Mullick, JJ., was followed in another unreported case by D. Chatterjee and Walmsley, JJ., but we are informed by Babu Ram Charan Mitter that the case was not argued before them and that he conceded that the decision of Stephen and Mullick, JJ., would govern the latter case.
16. Having regard to the conflict of views on the main points in the case, I think it would have been satisfactory to have the points referred to a decision by the Full Bench, but my learned brother is of opinion that a patni tenure cannot be sold under the Bengal Tenancy Act and that being his opinion, the other questions cannot be referred to a Fall Bench.
17. I am of opinion that not only a patni tenure can be sold under the Bengal Tenancy Act, but that decrees for rents for earlier periods can be enforced against the surplus sale proceeds of a patni tenure when sold in execution of a decree for rent under the provisions of the Bengal Tenancy Act.
18. Some questions were raised on behalf of the respondents as to the effect of the withdrawal of a portion of the surplus sale-proceeds by certain mortgagees and other persons in the presence of the zemindar defendants and as to whether there should not be apportionment, but the questions were not raised in the Court below and as that Court decreed the suit, it was unnecessary to go into the questions.
19. Under the circumstances, i would reverse the decree of the Court below, and remand the case for a decision of the questions raised on behalf of the respondents, as stated above, and disposal of the case accordingly.
20. The practice of. Taking proceedings under the Bengal Tenancy Act for the sale of patnis for arrears of rent has gone so long unquestioned that I was prepared to take it for granted that it was well founded in law. Bat now that the question has been gone into, I have come to the conclusion that the practice is bad. Though in cases in which other points have been decided, this practice was taken to be good by the parties and by the Court, this question itself seems never to have been gone into.
21. It was argued that the procedure for sale under the Patni Regulation is summary and, therefore, only an alternative to some more elaborate procedure. It is a summary procedure, especially by the standard of the present day, but it is to be remembered that at that time, nearly hundred years ago, all rent suits were in the Revenue Courts. They did not come under the more elaborate procedure of the Civil Courts till later, and at the same time some protection was given by Section 14. Taking it, nevertheless, that the procedure is a summary one, as I think it is, though it probably did not at that time seem so summary, compared to ordinary procedure, as it now seems, it does not follow that it was merely an alternative to a more elaborate procedure. There is a summary procedure in many matters at the present day, but an optional alternative procedure, of a more elaborate kind, is not always available. I can find nothing to indicate that the procedure laid down was intended to be optional. I find the contrary.
22. The Regulation itself, in its first section, declares the purposes for which it was enacted. It narrates how the Permanent Settlement, then little more than twenty years old, had given rise to the creation of patnis It states that the deeds creating them provide that the tenure may be brought to sale for arrears of rent, but that 'the manner of the sale is not specified,' and that the mischiefs which have arisen, and the want of a consistent rule of action for the guidance of the Courts in regard to them have been productive of such confusion as to demand the interference of the Legislature and it has accordingly been deemed necessary to regulate and define the nature of the property give and acquired on the creation of a patni as above described, also to declare the legality of the practice of under letting in the manner in which it has been exercised by patnidars and others, establishing it the same time such provisions as have appeared calculated to protect the under-lessee from any collusion of his immediate superior with the zemindar or others for his ruin, as well as to secure the just rights of the zemindar on the sale of any tenure under the stipulations of the original engagement entered into with him. It has further been deemed indispensable to fix the process by which the said tenures are to be brought to sale, and the form and manner of conducting such sales.
23. The contention is that the process by which such tenures are to be brought to sale was nevertheless not fixed at all, but only ah addition was made to existing processes. The words of the Regulation are: 'It has been deemed indispensable to fix the process.' There must be. very strong reason for it, if it is to be held that in spite of this purpose, the Regulation did not fix the process, but left it optional to ignore the process provided by the Regulation and to pursue the old processes, which had led to the mischiefs' and confusion' which the Regulation was intended to remedy.
24. In the case of Rrindaban Chunder Sircar Choudhry v. Brindabnn Chunder Dey Chowdhry 1 I A. 178 : 13 B.L.R. 408 : 21 W.R. 324 : 3 Sar P.C.J. 365 the question whether a patni could be sold under the Bengal Tenancy Act was not gone into. The dispute was on other points. No case deals with the point. Returning to the Regulation itself, when it is stated, in Section 3(3), that the zemindar has the right to hold the patni answerable for any arrear of his rent, the right is left subject to whatever time limitation may be applied to it. Though in oases where the Bengal Tenancy Act applies there is a charge for the rent, this right also is subject, I think, to such limitation. A landlord who has allowed four years to pass without suing loses the charge given by the Tenancy Act. A landlord who allows more than one year to pass loses his charge under the Regulation.
25. The essential difference is in the time limit only. If he comes in time, the landlord has a charge for any arrear of rent of a patni, even if it be held that it cannot be sold under the Bengal Tenancy Act.
26. The same remarks apply to the provisions of Section 11(1) that the semindor's right to hold the tenure answerable cannot be defeated by any transfer, etc. His right is subject to a time limit on proceedings to enforce it.
27. Under Section 17(3) after deduction of one per cent.of the sale-proceeds to be paid to Government, 'the balance on account of which the sale may have been made shall next be made good in full to the zemindar, provided however that no former balances beyond those of the current year (or etc.) shall be included in the demand to be thus satisfied. Such antecedent balances, if the zemindar shall have omitted to avail himself of the process within his reach for having them satisfied at the time, will have become in fact mere personal debts of the individual talnqdar and must be recovered in the same way as other debts by a regular suit,' and provision is then made for payments out of the balance to dar-patnidars and others.
28. This is very important. If the zemindar omits to avail himself of the process within his reach for having them satisfied at the time, arrears of a period before the current year, or the year immediately expired, become mere personal debts. The 'process within his reach' means the process which the Regulation provides. of the zemindar omits to avail himself of it, till it is too late, his charge is time-barred.
30. One of the declared objects of the Regulation is to protect the under lessee. This provision protects him, this and the provision [Section 17(4)] that the balance shall go to the dar patnidars, etc. The zemindar shall not get it, the dar-patnidar shall get it. The decision in Basant Kumar Lose v. Khulna Loan Company 26 Ind. Cas. 197 : 20 C.L.J. 1 : 19 C.W.N. 100 seems to me to be incorrect in this respect. under Section 17(4) the balance shall go as therein directed. It, therefore, shall not go to the zemitldar. The Regulation is intended to protect the under-lessee from any collusion of his immediate superior with the zemindar or others. 'A paint dar, who has diminished the value of his interest by creating a dar-patni, is not to be left able to deprive the dar patnidar, both of his dar patni and of compensation for it, by an arrangement with the zemindar. If the zemindar's rent can sccumulate as a charge through many years the patnidar not paying it, having come to an understanding with the zemindar, then, on a sale for that large accmulation of arrears, the zemindar will get all his rent, and can give a patni to the old patnidar, on terras better for the zemindar than the terms of the old patni, and benefiting the patni-dar by the removal of the dar-patnidar. They could thus, in the words of the Regulation, ruin' the dar-patnidar. In the present case the zemindar seeks to take the rent of ten years, or more, out of the sale proceeds.
31. The longer a zemindat is allowed to delay the enforcement of his charge for rent, the greater hardship results to the holders of interests subordinate to the patnidar. The question is, how long is he allowed to delay the enforcement, in the case of a patni. In my opinion the Regulation has fixed the time.
32. But even if a patni could be sold by 'public auction' by any propess other than the process provided by the Regulation, I do not find any good reason to hold that Section 3(3) will not apply to that 'public auction.' The declared objects of the Regulation seem to require that the words 'public auction' in Section 3(3) should be taken to apply to any 'public auction' and not limited to mean an auction' under the Regulation, if there can be any public auction of a patni other than a public auction under the Regulation.
33. In my opinion, therefore,, the appellants have no charge for the amounts in respect of which they have appealed. The appellants have already got too much.
34. The appeal should be dismissed with costs.
35. I am also of opinion that if there can be a sale of a patni under the provision of the Bengal Tenancy Act, the lower Court is right in holding that the appellants have no charge for the amounts covered by the two previous decrees on the surplus sale-proceeds under the last decree. A charge for rent is a charge which is to be enforced by the special procedure laid down for enforcing it. It is a charge which results in great hardships in many cases. If the zemindar allows himself to be-come time-barred, or if he otherwise forfeits his right to enforce the charge by the prescribed procedure, he must suffer for it. In the present case, the zemidar has himself made it impossible to sell under the older decrees, by selling under the liter decree. He obtained his first decree so long ago as 1900: and his second decree more than four years later. He had sufficient time to sell up under his first decree and so on. His own delays are the cause of his difficulties He seeks to escape the penalty at the cost of transferees of part of the property.
36. If previous rent can be realised as a charge out of surplus sale proceeds from a sale under a rent decree, after satisfaction of the decree, there is nothing in the Act to limit the charge to such previous rent as has been previously decreed. Rent not yet paid, but not decreed, would be a charge. The contention leads to these difficulties. Also a suit for such previous rent might be time-barred. It is not apparent why the fact that a suit for such rent was time-barred should stand in the way, if' the fact that execution of a previous decree for rent is time-barred will not stand in the away, if a zemindar tries to take the rent covered by that previous decree out of the surplus sale-proceeds. Thus if the charge given by Section 65, Bengal Tenancy Act, is not a charge which can be enforced only by the procedure provided by the Act, the question comes up, whether there is such a charge for rent for which a suit is time-barred; and if there has been a suit and a decree, whether the charge will be lost when the decree is time-barred for execution. In my opinion, the right view is that the charge can be enforced only by following the procedure laid down by the Act, by getting a decree for the rent in respect of which the charge is to be enforced and by selling up udder that decree. No such difficulty as has been noticed can arise if this be held. And it is no hardship on a zemindar to have to sue, and then to execute his decree in the time allowed by law or forfeit his charge. But hardship does arise if a zemindar can enforce this charge for indefinite numbers of years, to the loss of mortgagees and others. In the present case the total rent is for eleven years. On the contentions set up, there might be oases in which the period was much longer still.
37. In my opinion the appeal should, on this ground also, be dismissed with costs.
38. AS there is a difference of opinion between us in this ease, the order of the Court under Section 98 of the Code of Civil Procedure is that the decree of the lower Court be confirmed and this appeal dismissed with costs.