1. Tins is an appeal from a judgment of the learned District Judge of Birbhum dated the 23rd November 1911. The point raised before us is an interesting one and it is this Where a tenure is sold for arrears of rent under the provisions of the Bengal Tenancy Act, is the old tenant personally liable for the rent between the date of the decree and the date of the sale? That is a matter, it seems to me, not covered by Section 169 of the Bengal Tenancy Act, which in the first instance deals with the grounds of the sale of the tenure and also with the fact that the tenure is to pass to the purchaser at the sale free from all liability created upon it by the default of the previous holder. But nothing is said in that section as to the . personal liability of the old tenant between the date. of the decree and the date of the sale in execution where there are no surplus proceeds of sale. This liability, I think, must be governed by the general law : and if the tenancy subsisted, I think the tenant is personally liable to pay the Tent between the date of the decree and the date of sale or confirmation of the sale if the tenancy was then still subsisting. The present case was decided in both the lower Courts on the footing apparently that the purchaser knew that there was an arrear of rent and that, therefore, he purchased the tenure subject to that. The case relied upon by the learned District Judge in Haradhan Chattoraj v. Kartik Chandra Chattopadhya 6 C.W.N. 877. is a very different case from the present. In that case, the proclamation of sale issued by the Court expressly stated that the tenure was being sold subject to the rent that accrued due between' the- date of the decree and the date of the sale. But that case is not an authority for the proposition put forward in the present case that the mere fact of the purchaser being the landlord is sufficient to cast upon the landlord himself the liability of paying the rent between the date of the decree and the date of the sale.
2. The other point that was raised by the defendants as to whether the relationship of landlord and tenant- existed between the plaintiff and themselves and the other defences raised in the written statement are matters which must be determined in the suit when it goes back to the Court of first instance for re-hearing. It will be incumbent upon the plaintiff to prove under Section 169 of the Bengal -Tenancy Act that the surplus proceeds of sale in execution of the tenure were not sufficient to satisfy the claim of the plaintiff for the rent that accrued due between the date of the decree and the date of the sale. The case must go back to be re-heard by the Court of, first instance oh the footing of those remarks. Costs of this- Court and of the lower Courts will abide the result of the re-trial by the Court of first instance.