Krishna Pada Chatterjee Vs. Sm. Manada Sundari Ghose and ors. - Court Judgment

Excerpt:
- ordersuhrawardy and graham, jj.1. this case raises a difficult and controversial question which in the interest of the public should be finally decided. the facts which have given rise to the litigation are shortly these: one jogneswar, the landlord of a certain holding, brought a suit for rent and obtained a decree against the tenants in 1922. in 1923 ho sold his interest in the ganti to gopal chatterjee. subsequently gopal obtained a decree for rent in suit no. 1930 of 1924 against the tenants. the holding was sold in execution of gopal's decree and after that decree was satisfied, the surplus sale proceeds to the extent of rupees 710 odd was deposited in court to the credit of the tenants. the holding was sold in execution of gopal's decree on 21st april 1927, but before that date on.....

Judgment:
ORDER

Suhrawardy and Graham, JJ.

1. This case raises a difficult and controversial question which in the interest of the public should be finally decided. The facts which have given rise to the litigation are shortly these: One Jogneswar, the landlord of a certain holding, brought a suit for rent and obtained a decree against the tenants in 1922. In 1923 ho sold his interest in the ganti to Gopal Chatterjee. Subsequently Gopal obtained a decree for rent in Suit No. 1930 of 1924 against the tenants. The holding was sold in execution of Gopal's decree and after that decree was satisfied, the surplus sale proceeds to the extent of Rupees 710 odd was deposited in Court to the credit of the tenants. The holding was sold in execution of Gopal's decree on 21st April 1927, but before that date on 21st March 1927, the plaintiff purchased the right, title and interest of the tenants in the holding at a certificate sale under the Public Demands Recovery Act for recovery of settlement dues from the tenants. Subsequently the rent decree, obtained by Jogneswar against the tenants was put into execution by Jogneswar's heirs and the surplus sale proceeds in Court were attached in execution. The plaintiff thereupon brought the present suit for a declaration that the money that was in deposit in Court as sale proceeds belonged to him and that he was entitled to it and not defendants 6 and 7 the heirs of Jogneswar.

2. Both the Courts below have dismissed the plaintiff's suit relying upon the Pull Bench decision of this Court in the case of Khetra Pal Singh v. Kritarthamayi Dasi [1906] 33 Cal. 566 holding that the decree obtained by Jogneswar retained the character of a rent decree even after Jogneswar had parted with his landlord's interest in favour of Gopal; and that as such it created a charge on the surplus sale proceeds in favour of defendants 6 and 7. The plaintiff has appealed and the main point argued on his behalf is that the Full Bench decision in the case of Khetra Pal Singh v. Kritarthamayi Dasi [1906] 33 Cal. 566 is no longer good law as it is inconsistent with the decision of their Lordships of the Judicial Committee of the Privy Council in the case of Arthur Henry Forbes v. Bahadur Singh A.I.R. 1914 P.C. 111. It is contended on his behalf that according to the decision of the Privy Council the rent decree obtained by Jogneswar ceased to be a rent decree after he had parted with his interest in the ganti, that it could only be executed as a money decree, and that, as the plaintiff had acquired the holding before it was sold, the surplus sale proceeds belong to him and defendants 6 and 7 cannot in execution of their money decree against the original tenants attach and recover the surplus sale-proceeds.

3. The facts of this case are on all fours with those of the Full Bench case of Khetra Pal v. Kritarthamayi Dassi [1906] 33 Cal. 566 and, if that case is taken to be good law, the plaintiff's suit must fail. Here as there the decree-holder was the landlord at the time of the suit and at the time of the decree, he parted with his interest in the tenure after the decree. In the Privy Council case the facts were slightly different. There the landlord had parted with his proprietary interest in the zamindari before he had brought a suit for rent against the patnidar. In both cases the suit was brought for rent which had accrued due during the period that the plaintiff was the landlord. In Bahadur Singh v. Forbes [1908] 35 Cal. 737 before the High Court the view taken was that the charge created under Section 65, Ben. Ten. Act, in respect of arrears of rent attached to the holding in default irrespective of the fact whether the landlord was still the landlord or had parted with his interest. In holding that that view was not correct their Lordships of the Judicial Committee referred to the Full Bench case of Khetra Pal [1906] 33 Cal. 566 and remarked that the learned Judges of the High Court had fallen into an error in drawing an inference of law in support of their conclusion from a decision which was obviously based on facts different from those with which they had to deal. Their Lordships then referred to the facts of Khetra Pal's case [1906] 33 Cal. 566 and distinguished them from those in the case before them. They then went on to observe:

The broad question however for determination in this appeal is whether the special right created in favour of the landlord under Section 65 can be claimed also by one who has parted with the property which gives this right and to which it is attached.

4. After laying down the proposition of law in general terms they proceeded to examine Section 65 itself in the light of the other provisions of the Bengal Tenancy Act, and on a critical examination of the scheme and purpose of the Act came to the conclusion that the charge created under Section 65 attaches to the tenure so long only as the relationship of landlord and tenant exists between the parties.

5. The question whether the Judicial Committee must be taken to have overruled the Full Bench decision came up for consideration on several occasions. In the case of Manindra Nath Ghose v. Ashutosh Ghose [1917] 41 I.C. 525 the facts were slightly different as the landlord parted with his interest in the property after he had applied for execution of the rent decree obtained by him. It was there contended that, even in a case where the decree-holder ceased to be the landlord during execution the decree could not be executed under Ch. 14, Ben. Ten. Act. In support of that contention reliance was placed on the decision of the Judicial Committee in Forbes v. Bahadur Singh A.I.R 1914 P.C. 111 which, it was argued, overruled the Full Bench case of Khetra Pal v. Kritarthamayee Dassi[1906] 33 Cal. 566. The learned Judges refused to assent to that view on the ground that every judgment must be read as applicable only to the particular facts proved and that the general expressions used must be considered to be governed and qualified by those facts They further remarked that, if the Privy Council had considered the Full Bench decision to be erroneous, they would doubtless have said so. In this view of the matter the learned Judges followed the decision in Khetra Pal's case [1906] 33 Cal. 566. The same question came up for consideration in the case of Syedunnessa Khatun v. Amiruddi [1918] 45 Cal. 294. The facts there also were different from those before us and. in the Full Bench and the Privy Council cases. There the plaintiff was the sole landlord at the date of the institution of the suit for arrears of rent, at the date of the decree, and at the time when the application for execution was made. The application was made in accordance with the special procedure described in Ch. 14, Ben. Ten. Act, and processes were issued simultaneously under Section 163 of the Act. But just before the sale the plaintiff lost her entire interest in the tenure. It was objected that the sale was not a sale under the Bengal Tenancy Act giving the purchaser the right to annul all incumbrances including the mortgage set up by the defendants.

6. The same argument was advanced in that case on behalf of the defendants, namely, that according to the decision of the Judicial Committee in Forbes' case A.I.R. 1914 P.C. 111she relationship of landlord and tenant not having continued up to the sale, the sale was not a sale under the special provisions of the Tenancy Act. This contention was overruled. Mookerjee, J., after giving a history of judicial opinion on the question before the matter came up before the Full Bench, observed that the case before him was not governed by either the Full Bench or the Privy Council decision. He was not prepared to apply to the case before him isolated dicta from the judgment of the Judicial Committee pronounced in a case where the facts were in essential particulars different, and ho relied upon the well-known oases of Quinn v. Lethem [1901] A.C. 495 at p. 506 and Kreglinger v. New Patagonia Meat and Gold Storage Co. [1914] A.C. 26 at p. 40, for the view that a decision is authority so far as it relates to the facts of the particular case. Though the learned Judge did not say so it would appear that in his view the Full Bench case of Khetra Pal [1906] 33 Cal. 566 was not overruled by the decision of the Judicial Committee in Forbes' case A.I.R. 1914 P.C. 111.

7. The above are the reported cases that have come to our notice which have taken the view that the Full Bench case of Khetra Pal v. Kritarthamayi [1906] 33 Cal. 566 is still of binding authority. There are some decisions to the contrary which, while not going so far as to say that Khetra Pal's case [1906] 33 Cal. 566 is not good law, have followed the Privy Council decision in eases the facts of which were similar to those in Khetra Pal's case [1906] 33 Cal. 566. In the case of Ram Prasad v. Ram Chandra Singh [1915] 27 I.C. 601 the facts were exactly the same as in the present case. The original landlord instituted a suit in May 1904 against the tenants. A decree was obtained on 21st September 1904. On 6th October 1904, the landlord's proprietary right was purchased by the plaintiff in the suit. Thereafter the original landlord took steps for the execution of his decree. There was a sale in execution and it was contended that under that sale the holding of the tenants passed to the decree-holder who was the purchaser at the sale. The learned Chief Justice after stating the facts as above set forth said:

This argument has been founded upon the theory that Section 65, Ben, Ten. Act, was still applicable at the time of the execution proceedings. Whether it is so or not is a point of some nicety. But we are assisted in determining the scope of that section by a recent decision of the Privy Council in the case of Forbes v. Bahadur Singh A.I.R. 1914 P.C. 111. It is true that the precise position with which we are now confronted was not before their Lordships on that occasion, but I think that the first result of their decision is that the sale of the holding is possible so long as the rent is the first charge thereon. But the rent remains a first charge only so long as the relationship of landlord and. tenant subsists, in other words the charge is an incident of that relationship. Certainly that is a convenient view, be-cause otherwise there might be introduced into this law, which regulates the relation between landlord and tenant, a supervening right of serious consequence.

8. There is no reference in that decision to the Full Bench case of Khetra Pal [1906] 33 Cal. 566 but considering the constitution of the Bench we have no doubt that that case was not overlooked and that it was considered in connexion with the Privy Council case which they preferred to follow. There is a more recent decision of this Court on the point in the ease of Shaikh Rahimuddi v. Shaikh Chadem : AIR1928Cal768 . In that case the landlord brought a suit for rent against the tenants in occupation of the lands which had accrued due during the period that the relation existed between the parties and obtained a decree. After the decree the landlord parted with his interest in favour of the defendant in the suit. The decree obtained by him was put into execution after the date of the sale of the superior interest to the defendant and in execution of the decree the tenancy was brought to sale. The plaintiff was the purchaser at the sale and brought a suit against the defendant, who had dispossessed the original tenant, for a declaration of his title and for possession. The lower appellate Court had held relying on the case of Manindra Nath Ghose v. Ashutosh Ghosh (4), that the sale conferred a good title on the plaintiff, and that he was entitled to recover possession, he having purchased the holding under Ch. 14, Ben. Ten. Act. The learned Judges followed the decision of. the Judicial Committee in the case of Forbes v. Bahadur Singh A.I.R. 1914 P.C. 111 and with regard to the case of Manindra Nath Ghose v. Ashutosh Ghose (4), they observed that that decision was on the particular facts of that case. They held following the Privy Council decision that the plaintiff had failed to substantiate his right as the relationship of landlord and tenant between the decree-holder and the original tenant had not continued up to the time of the sale and that it not having been proved that the holding of the tenant was transferable, the plaintiff acquired no right under his purchase. Shaikh Rahimuddi's case : AIR1928Cal768 also did not make any reference to the Full Bench case, but that case was presumably considered as mention was made of Manindra' s case which was based on the Full Bench decision.

9. We are thus left to decide which of these divergent views we should follow. We think it is necessary that we should examine for ourselves the question that has been raised before us. No doubt the Full Bench case of Khetra Pal Singh v. Kritarthamayi Dassi [1906] 33 Cal. 566 has not been expressly overruled by the Judical Committee, and it is also true that that case was mentioned in the judgment of the Judicial Committee and distinguished but not dissented from. We also bear in mind the well-known principle that a case should be taken to have been decided on its particular facts. We cannot however shut our eyes to the reasoning adopted by the Judicial Committee in the case of Forbes v. Bahadur Singh A.I.R. 1914 P.C. 111 which seems to us to be incontrovertible.

10. The judgment of the Full Bench in Khetra Pal's case [1906] 33 Cal. 566 is very short. The only ground given by the learned Chief Justice, who delivered the principal judgment, was that

at the time when the suit is instituted and a decree is made the plaintiff is still the landlord, the fact that subsequently he sells his landlord's interest does not prevent him from obtaining the benefit of Section 65 of the Act.

11. In the order of reference by Rampini, J., sitting with Pratt, J., reference was made to the case of Hem Chunder Bhunjo v. Monmohini Dassi (1899] 3 C. W.N. 604 in which case the interest of the landlord had ceased after he had obtained a decree for rent in respect of an under-tenure. It was held that he could not thereafter bring the tenure itself to sale in execution of the decree under Ch. 14, Ben. Ten. Act. It is noted in the referring order that two reasons were given in support of the decision in the case of Hem Chunder Bhunjo (1899] 3 C. W.N. 604; if it be held that the right to sell a tenure in execution of a decree for arrears of rent did not cease when the relation of landlord and tenant ceased, then under Section 65 there might be two first charges for different rent, one by the previous landlord, who had lost his possession and the other by the person, who had succeeded him; and (2) that Section 66 does not apply to a case in which the person seeking to eject is not a landlord at the time of the execution. These reasons did not appeal to the learned Judges who referred the case to the Full Bench, and they were of opinion that the case, Hera Chunder Bhunjo v. Monmohini Dassi (1899] 3 C. W.N. 604 was wrongly decided. In the case of Forbes v. Bahadur Singh (2) these were exactly the points upon which their Lordships of the Judicial Committee held that it was not possible to hold that the charge under Section 65 continued after the. landlord had parted with his interest. Their Lordships say at p. 100 (of 41 I.A.)

Section 65 declares that a certain class of tenants shall not be liable to ejectment for arrears of rent but that their tenure or holding shall be liable to ' sale in execution of a decree for the rent thereon.' Section 66 provides that in case of other tenants, not coming within the purview of S.65, the landlord ' may institute a suit to eject' the defaulting tenant. 'The two sections taken together cover practically the remedies provided by law for the landlord to recover arrears of rent. One section is the exect corollary of the other. The right to proceed to sale in one case, in the other to eject, is dependent on the existence of the relationship of landlord and tenant, at the time when the remedy provided by law is sought to be enforced.

12. It would seem therefore that the view taken by the Full Bench was rendered questionable by the view expressed by their Lordships. Their Lordships next referred to Section 148, Clause (h) which says that the right to apply for execution of a decree for arrears is attached to the status of the decree-holder qua landlord. After considering the entire scheme of the Tenancy Act with special reference to Ch. 8, in which Section 65 appears and Ch. 14 relating to the execution of rent decrees, their Lordships state their conclusion as follows:

The prohibition contained in this section refers to decrees obtained by the landlord under Section 65. To acquire the right which the section gives not only the person obtaining a decree must be the landlord at the time, but the person seeking to execute it by sale of the tenure must have the landlord's interest vested in him. In other words, the right to bring the tenure or holding, as the case may be, to sale, exists so long as the relationship of landlord and tenant exists.

13. Their Lordships further commented adversely on the view which appeared to have been taken in the High Court (by Rampini, J.) that

the decree being for arrears of rent, the tenure becomes ipso facto hypothecated so to speak for the debt, and that consequently the person to whom the debt is duo, although he has ceased to be the landlord and is to all intents and purposes, so far as the rights and obligations under the law are concerned, a total stranger to the property with which these rights and obligations are inseparably connected, has the special remedy given to the landlord to recover arrears attached to the tenure.

14. We have pointed out that the grounds upon which the reference was made to the Full Bench in the case of Khetra Pal Singh v. Kritarthamoyi Dassi [1906] 33 Cal. 566 have been disapproved by the Judicial Committee and the quotations given above from their judgment conclusively show that their Lordships did not accept as correct the view expressed by Maclean, C. J. in the judgment in the Full Bench case that if at the time when a suit is instituted and a decree is made for arrears of rent the plaintiff is the landlord, the fact that he subsequently sells his landlord's interest does not prevent him from obtaining the benefit of Section 65 of the Act. It is not necessary for us to say that the decision of the Judicial Committee in the case of Forbes v. Bahadur Singh (2), has overruled the Full Bench decision in the case of Khetra Pal Singh v. Kritarthamoyi Dassi [1906] 33 Cal. 566 it has, as a matter fact, not expressly done so. But for the reasons which we have stated above it seems to us that the Full Bench decision in Khetra Pal's case [1906] 33 Cal. 566 is no longer good law in view of the decision of the Judicial Committee in Forbes' case. The question before us came up for consideration before another Bench presided over by N. R. Chatterjea and Richardson, JJ., and their Lordships thought that it was a matter which should be decided by a Special Bench and made a reference which is to be found in that case of Prafulla Krishna Debi v. Nasibunnessa Bibi [19l6] 37 I.C. 425. It is unfortunate that that reference proved abortive as a result of a technical objection that the second appeal to this Court out of which the reference arose was incompetent in view of Section 153, Ben. Ten. Act.

15. In view of the importance of the matter, and in order that the correctness of the Full Bench decision in Khetra Pal's case [1906] 33 Cal. 566 may be considered, we think that we should adopt the same course. Accordingly we direct that the case be placed before the Hon'ble the Chief Justice in order that it may be referred to a Special Bench under Part 2, Chap. 7, Rule 6, High Court Appellate Side Rules, for a consideration of the question whether in view of the decision of their Lordships of the Judicial Committee in the case of Forbes v. Bahadur Singh A.I.R. 1914 P.C. 111 the decision of the Full Bench of this Court in the case of Khetra Pal Singh v. Kritarthamayi Dassi [1906] 33 Cal. 566 is still good law and incidentally for a decision whether the cases of Manindra Nath Ghose v. Ashutosh Ghose (4) and Syedunnessa Khatun v. Amiruddi (5) were correctly decided.

16. As the decision of this case rests upon the decision of the Special Bench on the point referred to above the whole case will be placed before that Bench.

Rankin, C.J.

17. The facts of the present case are as follows: Jogneswar held a ganti tenure and under it defendants 1 to 5 hold a raiyati jama. I will call them 'the tenants.' In 1922 Jogneswar obtained a rent decree against the tenants, and in 1923 he sold his tenure to Gopal who in 1924 sued the tenants for rent and obtained a decree under which the tenants' holding was sold in execution on 21st April 1927. The sale proceeds were sufficient to satisfy Copal's decree and to leave a surplus of Rs. 710-2-9 which remained in Court to the credit of the tenants, the judgment-debtors. Shortly before this sale, viz., on 21st March 1927, the present plaintiff purchased the right, title and interest of the tenants in the holding at a certificate sale under the Public Demands Recovery Act. Though this sale was not confirmed until 23rd May, it took effect under Sub-section 2, Section 20 of the Act from 21st March. The plaintiff says that the surplus sale proceeds, left in Court after satisfaction of Gopal's decree, now represent the holding and belong to him.

18. On 5th July 1927 he brought the pro-sent suit against the heirs of Jogneswar, defendants 6 and 7, to establish this right complaining that since April 1927 they had in execution of Jogneswar's old decree of 1922 attached the sale proceeds. Ho contends that as Jogneswar ceased to be the tenants' landlord in 1923 his heirs could not in 1927 execute the decree of 1922 by a sale under Chap. 14, Ben. Ten. Act so as to pass to the auction-purchaser the tenants' holding, but could obtain execution as of an ordinary money decree and not otherwise. On this footing it is clear enough that the plaintiff's right to the sale proceeds would prevail since an ordinary judgment-creditor can take no more than the interest of the debtor.

19. The heirs of Jogneswar contend that as Jogneswar was the tenants' landlord at the time when he brought his suit for rent, and at the time when ho obtained his decree, it was open to them in 1927 to proceed to execution of the decree under Chap. 14, Ben. Ten. Act, and upon the footing that by Section 65 of the Act, as it then stood, their claim for rent was a first charge on the holding. They have a Pull Bench ruling of this Court in their favour: Khetra Pal v. Kritarthamoyi [1906] 33 Cal. 566.

20. In 1914 however the case of Forbes v. Maharaj Bahadur Singh A.I.R. 1914 P.C. 111 came before the Privy Council. In that case the landlord had not brought his suit for arrears of rent until after ho had parted with his interest in the land. As the Full Bench in Khetra Pal's case [1906] 33 Cal. 566 had given no reasons for their decision, and had strictly limited it to a case where the plaintiff at the times when the rent suit was instituted and decree made was still the landlord, the Full Bench ruling did not apply to the case of Forbes (3) at all. Indeed the Judicial Committee had occasion to observe that the Division Bench which had in this Court dealt with Forbes's case A.I.R. 1914 P.C. 111 had gone outside the Full Bench decision and beyond its logic or at least its implications. Nevertheless, the judgment delivered by Mr. Ameer Ali proceeded to interpret Section 65, Ben. Ten. Act by a consideration of the general scope of that statute as well as of the chapter in which it occurs and in more than one passage laid down that the right to bring the holding to sale exists only so long as the relationship of landlord and tenant exists.

21. As the Judicial Committee had not in set terms overruled Khetra Pal's case [1906] 33 Cal. 566 and as by the rules and practice of this Court all Courts are bound by a Full Bench decision difficulty was felt in subsequent cases. In Ram Prosad v. Ram Charan (8) Jenkins, C. J. and Chatterjea, J. had in 1914 followed Forbes case contrary to the Full Bench decision but in 1916 Chatterjea and Richardson, JJ although of opinion that the Full Bench decision was wrong, thought it right to refer the question to a Special Bench which could overrule the Full Bench, whether the Judicial Committee had overruled it or not: Prafulla v. Nasibunnessa [19l6] 37 I.C. 425. Very unfortunately that reference proved abortive as it was discovered that under Section 153, Ben. Tea. Act, no appeal lay to the High Court. After this of cases which in this Court brought the Full Bench decision into question two were cases in which the landlord had not parted with his interest until the very last stage-that is pending the proceedings in execution Manindra v. Asutosh [1919] 52 I.C. 582, Syedennessa v. Amiruddi A.I.R. 1922 P.C. 352. The Division Bench in both cases considered that the sale passed the holding.

22. The relevant sections of the Bengal Tenancy Act having been substantially altered in 1928 the present case which is governed by the old law came on second appeal before Suhrawardy and Graham, JJ., in August 1931. They have referred to this Special Bench the question:

whether in view of the decision of their Lordships of the Judicial Committee in the case of Forbes v. Bahadur Singh A.I.R. 1914 P.C. 111 the decision of the Full Bench of this Court in the case of Khetra Pal Singh v. Kritarthamoyi .Dasi [1906] 33 Cal. 566 is still good law and incidentally whether the cases of Manindra Nath Ghose v. Ashutosh Ghose [1906] 33 Cal. 566 and Syedennessa hatun v. Amiruddi A.I.R. 1922 P.C. 352 were correctly decided.

23. They have expressed the opinion that the Full Bench decision in Khetra Pal's case [1906] 33 Cal. 566 is no longer good law in view of the decision of the Judicial Committee in Forbes' case A.I.R. 1914 P.C. 111 and they have much assisted us by their careful and lucid exposition of the case law on this subject.

24. In my opinion the conclusion arrived at by the referring Judges and so carefully expressed by them is right and should be affirmed: the decision in Khetra Pal v. Kritartha Moyi [1906] 33 Cal. 566 should be overruled. Manindra's case and Syedunnessa's case should also be overruled.

25. The matter cannot be put more plainly than in the words which Chatterjea and Richardson, JJ. in Profulla's case added to their analysis of the Judicial Committee's judgment in the case of Forbes (2) at p. 333 (of 24 C. L.J.): 'It will be seen therefore that the principle upon which the judgment of their Lordships proceeds, viz. that in order to acquire the right which the section gives not only the person obtaining the decree must be the landlord at the time but the person seeking to execute it by sale lot the tenure or holding must have the landlords' interest vested in him that the right to bring the tenure or holding to sale exists so long as the relationship of landlord and tenant exists land that it is the existing landlord alone who can execute the decree applies equally to a case where the landlord ceases to be landlord after he obtains a decree for arrears of rent and before he seeks to enforce it against the tenure or holding as to a case where he ceases to be landlord before he institutes his suit for rent. In either case there is no relationship of landlord and tenant at the time when the remedy provided by law is sought to be enforced.'

26. To decide the particular case now be-fore us it is not necessary to go further but as the referring Judges have formulated for our opinion the question whether Manindra's case and Syedunnessa's case were correctly decided we may give precision to our ruling by considering the question as it arose in these cases. In the former case we learn from the report that the landlord had parted with his interest after ho had applied for execution--that is, after he had made the application referred to by Section 162, Ben. Ton. Act. In the latter case the landlady had not parted with a portion of her interest until after the writ of attachment and proclamation of sale had been issued together under Section 163.

27. The reasons given in Manindra's case need not detain us but, in Syedunnessa's case Mookerjee, J., considered that on the facts before him it was not concluded by the judgment of the Judicial Committee in the case of Forbes A.I.R. 1914 P.C. 111 whether Khetra Pal's case had been in essence overruled or not, and even if certain isolated dicta in that judgment were, as expressed, of sufficient generality to cover the case before him. Accordingly he decided the case 'from the point of view of principle' as follows:

The legal effect of the sale should depend upon the status of the decree-holder at the time the proceedings for sale were taken by the Court at her instance. She was competent to ask the Court to bring the defaulting under-tenure to sale and to adopt for that purpose the measures prescribed by the statute. These measures were duly adopted and the property was brought to sale in conformity therewith. The respondents have not been able to invoke the aid of any intelligible principle by which the legal effect of the sale can under such circumstances be made to depend, not upon the true character of the proceedings in execution duly taken, but the relative situation of the parties at the moment of the sale.

28. I think that if the Full Bench decision is put on one side the statute as construed by the Judicial Committee discloses a clear principle. It was stated by Jenkins, C. J., in Ram Prosad's case:

I think that the first result of that decision [i. e. Forbes' case A.I.R. 1914 P.C. 111] is that the sale of the holding is possible so long as the rent is the first charge thereon. But the rent remains a first charge only so long as the relationship of landlord and tenant subsists; in other words the charge is an incident of that relationship. Certainly this is a convenient view, because otherwise there might be introduced into this law which regulates the relationship of landlord and tenant a supervening right of serious consequence.

29. For the purpose of applying this principle, which, as stated by Mr. Ameer Ali, is that

the right to bring the tenure or holding to sale exists so long as the relationship of landlord and tenant exists

it would seem unreasonable to allow a landlord to file his petition for execution, part with his interest, and still claim the) benefits of Ch. 14 of the Act in respect of the subsequent sale. The sale is as much the act of the Court as the issue of the proclamation. The question is one between the landlord and third parties, for even a sale under a money decree will pass the tenants interest. Substantial delay between the different stages of an execution proceeding is always possible. There is no principle and no convenience in treating a mere order for sale in execution as crystallizing the rights of an execution creditor so as to conclude third parties. In my judgment the principle of the statute is that only the landlord can bring the holding to sale and this involves that a sale held after his charge has ceased does not pass the holding as distinct from the tenant's right, title and interest therein. I therefore think that in overruling Khetra Pal's case [1906] 33 Cal. 566 we should overrule the cases of Manindra and Syedunnessa at the same time.

30. In my judgment the second appeal should be allowed, the suit should be decreed with costs in all the Courts and it should be declared that defendant 6 or his representatives have no right as against the plaintiff to proceed in execution in respect of the sum of Rs. 710-2-9 being the surplus sale proceeds of Gopal's sale in the pleadings mentioned.

31. The hearing-fee in this Court is assessed at five gold mohurs for the second appeal and the reference to the Special Bench together.

C.C. Ghose, J.

32. I agree.

Buckland, J.

33. I agree.

Pearson, J.

34. I agree.

Mukerji, J.

35. I agree.

Mallik, J.

36. I agree.

Guha, J.

37. I agree.