1. This appeal relates to a resumable under-tenure formed out of an eight-annas share of Mauza Moro in Chota Nagpur. The original under-tenure-holders had mortgaged half of it to the respondent plaintiff, and had given him an usufructuary lease thereof at a moiety of the rent due to the superior landlord, the Maharaja of Chota Nagpur. On the 18th August 1903, the appellant-defendant purchased what may, for the present, be called the whole under-tenure at a sale held in execution of a decree for arrears of its rent obtained by the Maharaja under the Chota Nagpur Landlord and Tenant Procedure Act of 1879 (Bengal Act 1 of 1879); while the respondent-plaintiff purchased, on the 15th July 1905, the half mortgaged to him at a sale in execution of a mortgage-decree which he had secured against his mortgagors. So far, then, this was the position of affairs. From March 1903 till July 1905, the defendant was the under-tenure-holder, from whom the whole of the rent of the under-tenure was due to the Maharaja; whereas the plaintiff was the defendant's sub-lessee of half of the under-tenure, and was bound to pay the defendant half of the said rent. In July 1905, however, the parties became equal co-sharers, and thereafter each of them was responsible for a moiety to the superior landlord.
2. In 1906, the Maharaja sued the defendant for the entire rent of the years 1902 to 1904 (roughly), and obtained a decree, which the plaintiff paid in order to prevent the sale of the under-tenure in execution. Again, in 1907, a similar decree for the rent of 1905 was obtained against the defendant and similarly satisfied by the plaintiff. The suit out of which the present appeal arises, was subsequently brought by the plaintiff for the recovery from the defendant of half of the rent thus discharged by the plaintiff for the years 1902 to 1905, the plaintiff further claiming, for reasons which will presently appear, the whole instead of a moiety, of the rout which ho had paid for the year 1904. In the Court of first instance the Munsif allowed the claim for half of the rent through-oat, and refused the further claim for the other half of the rent of 1904; but the Sub-Judge, on appeal, allowed the latter also, and the first of the two points taken before me is that he was wrong in law in so doing.
3. As has been shown already, the respondent was in 1904 the sub-lessee of the appellant in respect of half of the under-tenure and bound to pay him half the rent thereof; and this liability he discharged--or, rather, was compelled by suit to discharge. The appellant, however, failed on this part to pay the rent due for 1904 to the superior landlord: a decree therefor was obtained by the Maharaja against him; and the respondent had to pay the decretal amount in order to save the under-tenure from sale. In these circumstances, the respondent sought to recover that amount in full from the appellant, and it seems to me that he was clearly entitled to do so. The arrear for 1904 had fallen due before the respondent's purchase in 1905; so that the respondent was, in regard to it, only the mortgagee in possession, whereas the appellant stood in the shoes of the mortgagors, the original under-tenure-holders. The only person bound to pay the Maharaja's rent for 1904 was, therefore, the appellant, whom the Maharaja accordingly sued and obtained a decree against. The respondent's mortgage-interest then became liable to be defeated by the threatened sale under the law, as amended by Sections 34 and 35 of the Chota Nagpur Tenancy (Amendment) Act, 1903 (Bengal Act V of 1903), which had, for the first time, rendered a resumable under-tenure saleable, subject to the superior landlords' right of resumption, in execution of a rent-decree. The respondent had, therefore, to protect himself by depositing the whole of the rent decreed, and, as he thereby protected the appellant also, he was surely entitled to get it all back from the latter. I agree, therefore, with the lower Appellate Court, and I think that there is neither law nor logic in the Munsif's decision awarding the respondent one-half, and not the whole.
4. The only other ground of appeal relates to a set off, which the Court of first instance allowed, but the lower Appellate Court disallowed the appellant. The Maharaja had sued the original under-tenure-holders for the rent of the years 1899 to 1901, a period anterior to the purchase of either the appellant or the respondent, and he had obtained a decree. This decree the appellant had satisfied on the 17th March 1906, in order to prevent the sale of the under-tenure on that date, and he sought in the present suit to set off half the decretal amount so paid by him against the respondent's claim for contribution.
5. Now, as has been set forth above, the appellant purchased this resumable under-tenure at an auction sale held on the 18th August, 1903, in pursuance of the provisions of the Chota Nagpur Landlord and Tenant Procedure Act of 1879. But, under Section 124 of that enactment, as it stood originally, such an under-tenure could not be sold at all in execution of a decree for arrears of rent, and all that could be sold, with the sanction of the Commissioner of the Division, was the right and title of the judgment-debtor in it. By Section 35 of the Chota Nagpur Tenancy (Amendment) Act, 1903 (Bengal Act V of 1903), Section 124 of the original Act was, no doubt, repealed. But the repealing enactment did not come into force till the 4th November 1903; and, although its Section 1, Sub-section (3), declared it applicable, not only to all proceedings, instituted after its commencement, but also, 'so far as might be to all cases pending in any Court or before any officer on the date of such commencement,' it cannot possibly, in my opinion, be held to have in any way affected an auction-sale concluded before that date. The learned Vakil for the appellant has referred to the well known exception in favour of enactments merely regulating procedure and practice to the ordinary rule against retrospective effect laid down by Section 8 of the Bengal General Clauses Act, 1899 (Bengal Act I of 1899); but there seems to me to be no cogency in his argument and 1 have no hesitation in saying that the learned Sub-Judge has arrived at the right conclusion. Section 124 of the Act of 1879, as originally passed, applied: whence it follows that the appellant's purchase on the 18th August 1903, was a purchase of, at most, only the right and title of the defaulting under-tenure-holders, and did not carry with it any charge in respect of the arrears of rent owed by them. Nor could the respondent incur any such liability by his purchase in July 1905, in execution of his mortgage decree. The liability for the arrears of 1899 to 1S01 was a purely personal liability, which continued to rest on the mortgagors, the original under-tenure-holders and the appellant's payment was a purely voluntary payment which benefited them alone. Ergo, the appellant's claim by way of set-off has, in the view which I take of the case, been rightly rejected.
6. There remains only the respondent's cross-objection to the order depriving him of his costs in the Court of first instance. I am not prepared to interfere on a special appeal with the discretion exercised by the lower Appellate Court in a matter of this kind.
7. The result is, that this appeal is dismissed with costs, and the cross-objection is similarly disallowed.