( 1 ) THIS Revision Application raises an important ques- tion as to the procedure to be followed by the Court of Small Causes at Ahmedabad while issuing distress warrant under Chapter VIII of the Presidency Small Cause Courts Act 1882

( 2 ) THE facts of the case are as under: landlord Mohamed Ikbal who purchased the property on 10th April 1970 from its earlier owner Gunvantiben widow of Shantilal Kalidas and others applied for issue of a distress warrant against the tenant Balkrishna for recovering the rent due for a period of 10 months and 20 days after Balkrishnas tenancy was attorned by Gunvantiben and others in favour of Mohamed Ikbal. The Registrar of the Court of Small Causes at Ahmedabad issued the distress warrant. When the bailiff went to levy it the tenant requested him to grant him some time in order to enable him to collect the monies and to deposit in the Court. The bailiff gave him a few days time. Next day the tenant made an application to the Registrar of the Court of Small Causes in which he alleged that the distress which his landlord Mohamed Ikbal had obtained against him was excessive and illegal. The Registrar held an inquiry and found that Mohamed Ikbal ought to have applied for distress warrant to recover only a sum of Rs. 180. 00 and not Rs 597-33 for which it had been issued. He therefore made an order on 26th June 1971 by which he directed tenant Balkrishna to deposit a sum of Rs. 180. 00 representing the rent for a period of 10 months within two days in the Court. He further ordered that after the said amount was deposited by tenant Balkrishna landlord Mohamed Ikbal would be entitled to withdraw it whereupon the distress warrant would stand disposed off. Against that order the landlord made an application for a new trial under sec. 38 of the Act. It was heard by a Bench of two judges who recorded the finding that the Registrar was in error in modifying the distress warrant and reducing the amount recoverable thereunder to Rs. 180. 00. They therefore allowed the application and directed the tenant to deposit a sum of Rs. 597. 00 by 30th August 1973 in the Court. They further directed that the tenant was at liberty to make an application for fixing standard rent of the premises in his possession.

( 3 ) IT is that order made by the Bench of two Judges of the Court of Small Causes which is challenged in this Revision Application.

( 4 ) MR. Shah who appears for the tenant has firstly contende that the distress warrant to recover rent for a period of 10 months 20 days was a distress warrant not for an amount which had become due. According to him rent becomes due and payable at the end of the month and therefore the landlord could not have included rent for a period of 20 days in the amount which he sought to recover by levying the distress. In principle the argument which Mr. Shah has raised is a correct argument. Distress can be levied only for recovering rent which has become due. Rent becomes due and payable where there is a monthly tenancy at the end of a particular month. No distress therefore can be levied to recover rent for a part of the month because rent for a part of the month does not become due. If a landlord applies for issue of a distress warrant to recover rent for a period which includes a part of the month in case of a monthly tenancy the amount which he seeks to recover cannot be said to be due. If an application for issue of a distress warrant to recover rent for 6 months and 10 days is made then though rent may be due for a period of six months and may be recoverable by levying distress it is not due for a period of 6 months and 10 days in case of a monthly tenancy and therefore it cannot be recovered by levying distress. In our opinion inclusion of an amount which has not become due as and by way of rent as for example for a part of the month in case of a monthly tenancy in the amount which is otherwise recoverable vitiates the entire distress warrant and it must be se