Judgement

Appeal from a judgment and decree of the High Court (April 8, 1908) reversing a judgment and decree of the Subordinate Judge of Purneah (September 14, 1906).

The facts giving rise to the litigation were shortly as follows. Rai Dhanpat Singh, the father of the first respondent, was the zamindar of Lot Saifganj, a patni taluq of which Chattrapat Singh (a defendant and the fifth respondent) had been patnidar. Chattrapat Singh had created various darpatni tenures of which the appellant held two.

On June 27, 1893, Rai Dhanpat Singh sold and conveyed his right in the zamindari to Bhagwanbati Chowdhrain. On September 21, 1893, he instituted a suit against Chattrapat Singh to recover arrears of rent due to him for a period prior to the sale, and on July 10, 1896, he obtained a decree for the amount claimed.

On July 19, 1896, Rai Dhanpat Singh executed a deed of trust in favour of his son, the first respondent, appointing the respondents Nos. 2 to 4 the trustees, and, among other properties, assigned to them the above-mentioned decree. In 1897 the trustees applied for execution of the decree against Chattrapat Singh by attachment and sale of his patni tenure. Various objections were raised to the proceedings by the judgment debtor, but on March 20, 1899, the High Court decided in favour of the trustees as to their right to execution. In the meantime Chattrapat Singh having made default in the payment of the rent of his patni to Bhagwanbati Chowdhrain, the purchaser of the zamindari, she took proceedings under Regulation VIII. of 1819 before the Collector of Purneah, and the patni was advertised for sale thereunder. The appellant as darpatnidar applied to the Collector on May 14, 1900, for leave to deposit the amount of the arrears and did deposit the amount under s. 13 of the Regulation.

On May 23, 1900, the Collector made an order directing the appellant to be put in possession of the patni taluq under s. 13, sub-s. 4, of the Regulation, and on May 80 the appellant was put into possession and had since remained in possession. At the date of the suit there was due to the appellant a large sum in respect of this deposit.

Subsequently to the appellant being put into possession of the patni taluq the trustees, respondents Nos. 2 to 4, applied for execution of the decree which they had obtained on July 10, 1896; they advertised the patni taluq for sale under s. 163 of the Bengal Tenancy Act (Act VIII. of 1885), and afterwards obtained an order for a sale proclamation under s. 165 of that Act.

On July 9, 1906, the appellant instituted the present suit praying (1.) for a declaration that the decree of July 10, 1896, was not a rent decree within the meaning of the Bengal Tenancy Act, and that the patni tenure could not be sold in execution thereof, (2.) for a declaration that he had a first charge on the tenure in priority to all others which might have existed previously to May 14, 1900, and that the tenure could not be sold in execution free from that charge, and (3.) for an injunction.

The Subordinate Judge, by his judgment delivered on September 14, 1906, held that the appellant had a subsisting charge on the patni by virtue of his deposit under s. 13 of Regulation VIII. of 1819, and that the decree obtained by the trustee respondents on July 10, 1896, was not a rent decree within the meaning of s. 65 of the Bengal Tenancy Act, 1885. He accordingly made a decree as prayed.

Upon appeal to the High Court, that Court (Rampini and Sharfuddin JJ.), by its judgment delivered on April 8, 1908, set aside this decree and dismissed the appellants suit. The learned judges were of opinion that the decree of July 10, 1896, con stituted a first charge upon the patni taluq under s. 65 of the Bengal Tenancy Act, 1885, and that this was so although the zamindar had parted with his interest in the zamindari after the rent had become due, whether after or before he instituted his suit for rent being, in their view, immaterial. They held that the a