JUDGMENT
1. This is a Letters Patent appeal arising out of a suit for damages brought by the plaintiff who was an attaching creditor of the crops of a tenant against the contesting defendant who was the land-holder. The tenant was previously a proprietor but his proprietary interests were sold with the result that ha became an exproprietary tenant of about 23 bighas. Before any proceedings were taken to get the land in which he acquired exproprietary tenancy specified and rent fixed under Section 36, Land Revenue Act, the present plaintiff attached the sugarcane crops standing on two bighas out of these lands. The land-holder alleging that there was an agreement between the exproprietary tenant and himself for payment of Rs. 200 as rent for the entire holding, distrained the crops and a data was fixed by the sale officer for the sale of the orops. The attaching creditor applied to the Tahsildar for stay of proceedings as his execution case was pending in the civil Court but the Tahsildar refused to intervene. No suit to contest the distraint was filed by the tenant with the result that the crops were sold on the 11th December 1930, for Rs. 30, there being no higher bids. Both the Courts below have found that the real value of the crops was Rs. 120. The first Court also found that there was collusion between the tenant and the zemindar, but the lower appellate Court has not expressed any opinion on this point. Proceedings for the fixing of the rent for the exproprietary tenancy were started on the 30th July 1929, and terminated on the 16th September 1931, when the Collector fixed Rs. 51-14-0 as the proper rent. Thus the sale of the crops took place while the proceedings under Section 36, Land Revenue Act, were pending before the Collector but before the Collector had actually specified the lands and fixed the rent.
2. The first question which arose in this case for consideration was whether the land-holder had any right to distrain these crops before the Collector had fixed the rent. No doubt as soon as the rent is fixed, it becomes payable from the date the exproprietary tenancy arose and not from the date when it is fixed by the Collector; but until the land has been specified and the rent has been fixed by the Collector, it can hardly be treated as an arrear of rent. Section 131, Agra Tenanoy Act, provides that "an instalment of rent not paid on the day on which it falls due becomes on the following day an arrear of rent". So long as the Collector has not specified the land and fixed the rent, it can hardly be said that the rent has already become due and therefore on the following day becomes an arrear of rent. The correct view seems to be that it will become an arrear of rent only after the rent has been fixed though it will then become payable from the date when the exproprietary tenancy arose. There are some provisions in the Tenancy Act with regard to lands to which a person is admitted without any rent being fixed on the understanding that rent would be payable, in which case the rent has to be determined by suit under Section 45 of the Act, and until the rent has been so determined, arrear of rent cannot be claimed straight off. It follows that as no rent had been fixed by the Collector on the 11th December 1930, there was really no arrear of rent within the meaning of Section 152(2), Tenancy Act so that the landholder was not authorized to distrain the crops at that stage. The tenant for some reason or other did not file any suit to contest the distraint as contemplated by Section 175 and accordingly the sale officer sold the crops.
3. Section 152(1) provides that until such rent has been satisfied, no other claim on such produce shall be enforced by sale in execution of a decree of a civil or revenue Court, or otherwise. Thus so long as the rent has not been paid, which was a charge on the produce of the holding, the produce could not be sold in execution of the civil Court's decree. But that did not prevent the attachment of the crops. The plaintiff therefore had a valid attachment and had legally attached the crops which the land-holder got sold by way of distraint. The result of the illegal avt of the land-holder has been that the property worth Rs. 120 was sold and purchased by the land-holder himself for Rs. 30 and the amount taken in satisfaction of the claim for rent and the produce appropriated by him as the purchaser thereof. The attaching creditor could not have maintained a suit under Section 175, Tenancy Act, as he was not the person whose property had been distrained. His only remedy therefore is to sue in the civil Court for damages for the loss caused to him by the wrongful act of the defendant land-holder. The learned Judge of this Court has rightly held that the civil Court has jurisdiction to entertain the claim and can grant a decree if a proper case is made out. He has however held that:
It is not open to a civil Court to hold subsequently that the distraint was invalid, in view of the fact that a legal amount of exproprietary rent has been fixed as due for the year in question.
4. It seems to us that the subsequent fixing of the rent by the Collector would not make the distraint valid on the date when the property was sold, and so legalise the sale. Had the sale proceedings been taken after the fixing of the rent the attaching creditor might have prevented the sale by depositing the rent. He could not be expected to prevent the sale by depositing an undetermined amount when the exact rent was not known and a fairly large amount was actually claimed. He has suffered loss on account of the illegal act of the defendant and is, in our opinion, entitled to damages. The creditor's olaim is for a much larger amount, but the extent of the damages suffered by him is the difference between the value of the crop Rs. 120 and Rs. 51-14-0 which was assessed as the proper rent by the Collector, because the attaching creditor had no right to get the produce sold without satisfying the claim for rent. We accordingly allow this appeal and, modifying the decree of the lower appellate Court, decree the plaintiff's claim for Rs. 68-2-0 and dismiss the rest of the claim. As the appeal has partly succeeded and partly failed, we direct that the parties shall bear their own costs.