JUDGMENT Sulaiman, Ag. C.J.
1. This is a civil revision from an order of the District Judge passed on appeal in an insolvency matter. It was filed originally as a second appeal, but its style was later on altered. It is quite clear that not being a matter within Section 4, Provincial Insolvency Act, the case is not in the nature of a second appeal but more like a revision in a Small Cause Court case where the High Court for the purpose of satisfying itself that the order passed on appeal was according to law may call for the case and pass such order as it thinks fit Section 75, Sub-section (1), Prov. 1.
2. A receiver has bean appointed by the insolvency Court of the assets of the insolvent. The question which arose in the Courts below was whether he can in any way deal with these exproprietary holdings or be authorized to attach the standing crops or realize past and future rents. The form of the order passed by the first Court was modified by the lower appellate Court.
3. There is no doubt that under Section 23, Sub-section (1), Agra Tenancy Act, the interest of an exproprietary tenant is not transferable in execution of a decree or otherwise except in accordance with the provisions of that Act. Section 28, Sub-section (5), Provincial Insolvency Act, provides that the property of the insolvent for the purposes of vesting in the receiver shall not include any property exempted by the Code of Civil Procedure or by any other enactment from liability to attachment and sale in execution of a decree. As exproprietary holdings are not saleable it follows that they cannot vest in the Official Receiver.
4. As the expropriatary holdings do not vest in the receiver, it is quite clear that be has no right to obtain possession of those holdings so as to be able to cultivate the lands or sublet them to any subtenants he pleases. It is in this sense that the District Judge has held that no receiver of the exproprietary holdings can be appointed. This view is obviously right.
5. It is also quite clear that, as the insolvency Court cannot deal with these exproprietary holdings, the receiver cannot assign the rents in advance which may in future become payable by the sub-tenants to the exproprietary tenant; nor can the Court direct an attachment or seizure of such rents which will fall due in future.
6. The Court below has held that the rents which have already fallen due from sub-tenants and are recoverable by the exproprietary tenant are not a part of the exproprietary holdings themselves and would not be exempt from attachment or sale; and accordingly they vest in the receiver and he is entitled to recover all arrears of rent in respect of the exproprietary holdings which have already fallen due. The respondent has not challenged this order, and therefore we are not called upon to decide whether such arrears of rent vest in the receiver or whether he can maintain a suit in the Revenue Court against subtenants; even the holdings do not vest in him. It is equally unnecessary for us to express an opinion whether when in future the rents will fall due, they will forthwith vest in the receiver, or vest in the insolvent. Under Section 28, Sub-section (4) all property which would be acquired by or would devolve on the insolvent even after the date of the order of adjudication shall forthwith vest in the receiver. But the question as to such future rents will also depend on considerations applicable to rents that have already fallen due.
7. The result of the exproprietary holdings not vesting in the receiver obviously is that the exproprietary tenant will continue to be the tenant, and it will not be open to the receiver to substitute any tenant for him. He will be at liberty either to cultivate the lands himself or sub let them to sub-tenants at his will. The landholder will have a first; charge on the lands and therefore on the rents received from subtenants. If the receiver desires that the tenancy should not be extinguished and he is advised that he can recover the rent from the sub-tenants when they fall due, he may see that due payment of rents are made to the landholder either by the insolvent or his sub-tenants and if not then he may pay them himself.
8. We refrain from expressing any final opinion on the question whether, if the exproprietary tenant succeeds in obtaining rents from his sub-tenants before they became due, the receiver will have any remedy either by seizure of the rents received, whether in cash or in kind or by proceeding against him under the penal sections of the Insolvency Act. We modify the order of the Court below and direct that the rights of the parties should be governed by the above directions. The parties are to bear their own costs.