1. This appeal arises under the following circumstances. The appellant is the putnidar under the respondents. The respondent brought a suit for rent in respect of the putni. It was decreed partially by the Courts of first instance but the learned Additional District Judge on appeal decreed the suit in full. The objections taken against the decree of the lower appellate Court are, first, with regard to the payment of road-cess. The point) taken is that under the lease the putnidar is not liable to pay the amount of road cess in excess of what is stated therein. And secondly, the decree against the appellant for the payment for the entire amount of road-cess is wrong. On these points in the course of argument before us the learned vakils on both sides came to an agreement. The entire amount of road cess claim is Rs. 16-14 per year. It is, agreed that the defendant will pay to the plaintiff Rs. 8-7 as road cess per year and the plaintiff will bear the other half.
2. The next objection taken to the decree is with regard to that portion of it which directs the defendant to pay damages at the rate of 25 per cent. per annum. It is found by the lower appellate Court that the plaintiff agreed to reduce the rent in view of the alleged reduction in the profits but that the amount was not settled and no effect was given to it. On this finding the defendant submits that he is not entitled to pay damages or at any rate the amount of damages is too high. We think that in these circumstances we should be justified in allowing damages as stipulated in the potta itself, viz., that on the arrears of rent the putni-dar will be liable to pay interest at the rate of 12 per cent. per annum. We, therefore, fix the amount of damages to be paid by the defendant to the plaintiff at the rate of 12 per cent. per annum.
3. The third point raised before us is more substantial and it is this that the Court below ought to have ordered in the decree that the putni tenure should be first sold and if the amount was not realized from the sale thereof the balance should be realized from the person or other properties of the defendant. This point was not raised, as the learned Judge observes, either in the pleadings or in the issues or in the grounds of appeal before him. But we are pressed with the terms in the putni potta. The stipulation with regard to this matter is in these words: ' If you fail to pay rent according to the kists then according to the provisions of Act VIII of 1819 and other Acts in force on the subject of realization of rents and other Acts, which may be passed in future, the arrears with costs and interest at the rate of one per cent. per annum will be realized by auction-sale of the putni taluq. If the whole amount of arrears be not realized thereby the balance will be realized from your other properties.' In the absence of any contract to the contrary it is no doubt correct to say that in passing a decree for rent the Court is not entitled to direct that the defaulting tenure or holding should first be sold and the balance realized from other properties of the defendant; but where the parties have contracted that properties should be sold in a certain order and such contract is not contrary to the provisions of law, we do not see why it should not be given affect to. Our attention has been drawn to the case of Sourendra Mohan Tagore v. Surnomoyi  26 Cal. 103, where one of the terms of the kabuliyats was to the following effect: 'If I fail to pay money due or any instalment you shall be entitled to realize the same with interest from the first day of the month following the one for which default has been made by auction-sale of the said mouza under the 'provisions of Regulation VIII.' In interpreting this clause the learned Judges held that it did not restrict the right of the landlord to proceed against other properties of the tenant besides the defaulting tenure and does not limit the personal liability of the defendant to pay rent. The clause which we have quoted from the present lease is materially different from that which was under consideration in that case. It is stipulated here clearly that the defaulting tenure should be first sold under Regulation VIII of 1819 or any other law in force for realization of rent and if the whole amount of arrears is not realized thereby, the balance will be realized from other properties. The meaning of this clause is that the defaulting tenure should be first sold and if the entire dues of the plaintiff are not realized therefrom the landlord will be entitled to proceed against other properties of the tenant. We think we should give effect to this term of the lease and modify the decree passed by the Court below to that extent.
4. The result is that we partially allow this appeal from Appellate Decree (No. 1432 of 1923) and direct that the decree passed by the Court below be amended by inserting the words 'if the entire decretal amount and costs are not realized from the sale of the defaulting tenure the balance will be realized from the other properties of the judgment-debtor.' There will be a further modification in the decree of the lower appellate Court with regard to the amount of cesses and damages to be paid by the defendant to the plaintiff. Though the appeal has materially succeeded the points on which we have allowed it were not taken in the Court of appeal below. We, therefore, think it proper that the appellant should pay the respondent the costs of this appeal.