1. Kania, J.:—These two appeals are from a judgment of a Division Bench of the High Court at Calcutta and raise the question of the validity of s. 168-A of the Bengal Tenancy Act as amended by the Act of 1940.

2. The relevant facts are these. The appellant in both the appeals is a big zamindar. The respondents held a, putni as tenants under the appellant. The rents due in respect of this putni were in arrears for many years and on the 15th May, 1936, the putni was put up to sale under the provisions of Regulation VIII of 1819 for recovery of the rent due for the last kist of 1342 B.S. (1935-36) and it was purchased by a stranger. For recovery of the rent due in respect of the years 1339-41 B.S. (1932-35) and the first kist of 1342 B.S. (1935-36), the landlord instituted a suit being Bent Suit No. 2 of 1937 in the Court of the Subordinate Judge at Hooghly and obtained a decree for Rs. 56,000 and odd on the 25th February, 1938. Attempts were made to execute the decree between 1938 and 1940 some amounts were recovered from the judgment-debtor. The appellant then started execution proceedings on the 25th September, 1940, in the Court of the second Subordinate Judge of 24-Parganas, as the decree was transmitted there for execution. The decree-holder applied for recovery of the balance by attachment and sale of certain immovable properties belonging to the judgment-debtors, other than what was given as a putni to the debtors, and certain immovable properties were attached. Objections were taken to this by judgment-debtors 4 and 5 in one case and the official receiver in the other, and they gave rise to Miscellaneous Oases Nos. 24 and 40 of 1941. The appeals are from the decision of the High Court in these two cases.

3. The contention of both sets of judgment-debtors in substance was that the appellant was not entitled to proceed against any other movable or immovable properties of the judgment-debtors because of s. 168-A of the Bengal Tenancy Act. The Subordinate Judge, before whom the case first came for disposal, upheld the objections and dismissed the application for execution. An appeal preferred to the High Court also failed but the Court granted a certificate under s. 205 of the Government of India Act, 1935, and the appellant has thereupon brought this appeal to this Court.

4. On behalf of the appellant, it was contended that s, 168-A was ultra vires the Province of Bengal, because it was not covered by entry No. 21 or No. 21 read with entry No. 2 of List II of Schedule VII of the Constitution Act. In the alternative it was argued that it came in conflict with entry No. 4 of List III of the same Schedule. The second line of argument was that the decree was not for arrears of rent; it was a money decree and the provisions of the Bengal Tenancy Act did not apply to the enforcement of the decree at all. It was argued that therefore s. 168-A of the Bengal Tenancy Act had no application to the facts here. These points were urged before the lower Courts, but without success.

5. It is common ground that the lands given under the putni tenure were agricultural lands. Entry No. 21 in List II of Schedule VII runs as follows:—

“Land, that is to say, rights in or over land, land tenures, including the relation of landlord and tenant, and the collection of rents; transfer, alienation and devolution of agricultural land; land improvement and agricultural loans; colonization; Courts of Wards; encumbered and attached estates; treasure trove.”

6. Entry No. 2 in the same List runs as follows:—

“Jurisdiction and powers of all Courts except the Federal Court, with respect to any of the matters in this List; procedure in Rent and Revenue Courts.”

7. Section 168-A of the Bengal Tenancy Act runs as follows:—

“(1) Notwithstanding anything contained elsewhere in this Act, or in any other law, or in any contract—

(a) a decree for arrears of rent due in respect of a tenure or holding, whether having the effect of a rent decree or money decree, or a certificate for such arrears signed under the Bengal Public Demands Recovery Act, 1913, shall not be executed by the attachment and sale of any movable or immovable property other than the entire tenure or holding to which the decree or certificate relates:

8. Provided that the provisions of this clause shall not apply if, in any manner other than by surrender of the tenure or holding, the term of the tenancy expires before an application is made for the execution of such a decree or certificate;

(1) the purchaser at a sale referred to in clause (a) shall be liable to pay to the decree-holder or certificate-holder the deficiency, if any, between the pur chase price and the amount due under the decree or certificate together with the costs incurred in bringing the tenure or holding to sale and any rent which may have become payable to the decree-holder between the date of the institution of the suit and the date of the confirmation of the sale.

(2) In any proceeding pending on the date of the commencement of the Bengal Tenancy (Amendment) Act, 1940, in execution of a decree or certificate to which the provisions of sub-s. (1) apply, if there has been attached any immovable property of the judgment-debtor other than the entire tenure or holding to which the decree or certificate relates, and if the property so attached has not been sold, the Court or certificate-officer as the case may be shall, on the application of the judgment-debtor, direct that, on payment by the judgment-debtor of the costs of the attachment, the property so attached shall be released.”

9. The rest of the section is not material.

10. The first question for consideration is whether s. 168-A of the Bengal Tenancy Act is covered by entry No. 21 or No. 21 read with entry No. 2 of List II. That List covers matters on which the Provincial Legislature has exclusive powers to make laws. It was contended on behalf of the appellant that under Regulation VIII of 1819, the landlord had a right to recover the amount due as a personal debt. Under that Regulation, power is given to the landlord to get the tenure sold only for the rent of the previous year without filing a suit for the purpose. Section 17 of that Regulation provides for the disposal of the proceeds of any sale made under the rules of that Regulation. A certain percentage from the net sale proceeds had first to be deducted on account of the Provincial Government. The zamindar was next to be paid the rent of the preceding year with interest and charges incurred in bringing the taluq to sale. Then follows a proviso which runs as follows:—

“Provided, however, that no former balances beyond those of the current year (or of that immediately expired, if the sale be at the commencement of the following year) shall be included in the demand to be thus satisfied. Such antecedent balances, if the zamindar shall have omitted to avail himself of the process within his reach for having them satisfied at the time, will have become in fact mere personal debts of the individual taluqdar and must be recovered in the same way as other debts by a regular suit in the Court.”

11. It was further provided that the balance should be sent to the treasury of the Collector to meet the other claims pending against the taluqdar. Relying on the words of the proviso, it was argued on behalf of the appellant that the decree passed for arrears of rent in the present case was not a decree for rent but for a money claim. It was, therefore, contended that it was not passed under the Bengal Tenancy Act.

12. In our opinion, the first contention that the Provincial Legislature had no power to enact s. 168-A is unsound. The words of entry No. 21 clearly cover legislation in respect of rights in or over land and include the relation of landlord and tenant and the collection of rents. The meaning of s. 168-A is very clear. It appears to have been enacted to prevent a landlord from depriving a tenant of his other movable of immovable property to satisfy the claim for rent of the property let to the tenant. Sub-clause (1) (a) therefore directs that a decree for arrears of rent which has the effect of a rent decree or a money decree shall not be executed by the attachment and sale of any movable or immovable property other than the entire tenure or holding to which the decree relates. Sub-clause (1) (b) recognises that there may be a deficit and the decree may not be fully satisfied by the sale proceeds. It, therefore, provides that the purchaser shall make good that deficit. Sub-section (2) (which, in fact, applies to the present case) expressly directs that in any proceeding pending on the date of the commencement of the Amending Act, in execution of a decree to which sub-s. (1) applied, if any immovable property was attached the same should be released on the application of the judgment-debtor on his paying the costs of the attachment. It is, therefore, clearly a piece of legislation in respect of the rights of landlord and tenant with regard to rent which had accrued due in respect of the property let to the tenant. In our opinion, therefore, the words of entry No. 21 clearly cover this section.

13. If it were argued that this is a procedural section in respect of attachment of property and therefore is not covered by entry No. 21 in List II, entry No. 2 is relevant. It provides for legislation in respect of the jurisdiction and powers of all Courts (except the Federal Court) with respect to any of the matters in List II. The collection of rents is covered by entry No. 21. The jurisdiction and powers of the Courts in respect of the collection of rents is therefore covered by entry No. 2 in the List. Section 168-A of the Bengal Tenancy Act clearly deals with the powers and jurisdiction of the Court to get money paid to a decree-holder in respect of his decree for arrears of rents of agricultural lands. We, therefore, agree with the learned Judges of the High Court at Calcutta that s. 168-A is covered by entries Nos. 21 and 2 of List II of Schedule VII of the Constitution Act.

14. The next contention that the impugned section is in conflict with entry No. 4 of List III of the same Schedule has also no substance. The contention was that under s. 51 of the Civil Procedure Code a decree-holder had the right to have his decree executed as provided therein. Section 168-A, it was argued, was in conflict with s. 51 of the Civil Procedure Code and therefore the Provincial Legislature had no right to enact the same, as s. 51 of the Civil Procedure Code was already on the Statute Book when s. 168-A of the Bengal Tenancy Act was enacted. The answer to this is found in s. 143 (2) of the Bengal Tenancy Act. That section runs as follows:—

“143. (1) The High Court may from time to time, with the approval of the Provincial' Government, make rules consistent with this Act, declaring that any portions of the Code of Civil Procedure shall not apply to suits between landlord and tenant as such, or to any Specified classes of such suits, or shall apply to them subject to modifications specified in the rules.

(2) Subject to any rules so made and subject also to the other provisions of this Act, the Code of Civil Procedure 1908 shall apply to all such suits.”

15..ub-section (2) expressly makes the application of the Civil Procedure Code subject to the other provisions of the Bengal Tenancy Act. If the Provincial Legislature had power to enact s. 168-A under entries Nos. 21 and 2 of List II, it is a valid piece of legislation and will form part of the Bengal Tenancy Act. That being so, the Civil Procedure Code can apply only subject to the provisions of the Bengal Tenancy Act and that would include s. 168-A. It may also be noted that the Civil Procedure Code is made applicable to decrees passed under the Bengal Tenancy Act only because of s. 143 of that Act. If the same Act (which makes provision for its application) at another place provides that it shall not apply to a certain extent, it cannot be successfully contended that the last provision is in conflict with entry No. 4 of List III of Schedule VII of the Constitution Act and is therefore ultra vires. In our opinion, therefore, this contention must fail.

16. The last contention was that this decree is outside the Bengal Tenancy Act and therefore s. 168-A of the Act cannot apply to it at all. It is necessary to took at the record to ascertain if this decree was passed under the Bengal Tenancy Act. It is admittedly a claim in respect of arrears of rent of land given on putni tenure. It is registered as Rent Suit No. 2 of 1937 between landlord and tenant for the recovery of rent as contemplated by s. 146 of the Act. The suit is for rent of three and a half years only. That can be done under Schedule III, article 2 (b), of the Bengal Tenancy Act. If this was a money claim, apart from the Bengal Tenancy Act, the landlord could have filed a suit to recover arrears of six years' rent on the registered lease. That has not been done. Apart from the contention urged by counsel before us, it does not appear to have been raised in the lower Courts and the record does not show any reason why we should accept this contention. Apart from that, the wording of s. 168-A covers the case. It is made applicable when the decree is for arrears of rent, whether having the effect of a rent decree or money decree. The opening words of the section further show that effect must be given to the section notwithstanding anything contained elsewhere in the Bengal Tenancy Act, or in any other law, or in any contract. If the Legislature has power to pass the Act, none of these phrases oversteps the legislative limits of the Provincial Legislature. Therefore, the section would be applicable even though the decree may not be considered as passed under the Bengal Tenancy Act. We do not think that the contention of the appellant that the decree in the present case is not a decree for rent has any substance. Moreover, under s. 168-A if a decree for arrears of rent is passed, whether it has the effect of a rent decree or a money decree, the consequences mentioned in the section have to follow. The appellant, therefore, is in no better position in either case. In our opinion, the proviso to s. 17 of Regulation VIII of 1819 does not make the arrears of rent a money claim. The proviso only states that the balance of the sale proceeds shall not be utilised in paying the arrears of rent, but those arrears must be recovered by the landlord as personal debts by an ordinary civil suit. The procedure to cause the property let to the tenant to be sold for the immediately preceding year's rent only, is a special procedure provided by [Regulation VIII of 1819 and a landlord can take advantage of it without going to a Court at all.

17. It was strenuously urged on behalf of the appellant that no provision of the Bengal Tenancy Act can apply after the relation of landlord and tenant had ceased to exist. It was pointed out that before the present suit was filed, the land was sold under Regulation VIII of 1819. Therefore, no relationship of landlord and tenant existed between the parties when the present suit Jo recover arrears of rent was filed. In support of this contention, counsel relied on Arthur Henry Forbes v. Bahadur Singh⁹. In that case, the Judicial Committee of the Privy Council had occasion to consider s. 65 of the Bengal Tenancy Act which is in the following terms:—

“Where a tenant is a permanent tenure-holder, a raiyat holding at fixed rates or an occupancy-raiyat, he shall not be liable to ejectment for arrears of rent, but his tenure or holding shall be liable to sale in execution of a decree for the rent thereof, and the rent shall be a first charge thereon.”

18. The Board held that the right of sale and the charge given by the section existed only in favour of a person who occupied the position of a landlord and so long as the relationship of landlord and tenant continued. In our opinion, that case does not help the appellant. The decision was on the construction of s. 65 of the Bengal Tenancy Act. The words used in the section are clearly applicable only when the relationship of landlord and tenant existed on the date of the suit. There can arise no occasion for an ejectment, or a claim to a first charge on a property liable to be sold in execution of a decree for the rent, unless on the date of the suit the parties were a landlord and tenant. In the course of that judgment, certain observations showing that the Bengal Tenancy Act would operate or would govern the rights of the parties when they were landlord and tenant, are found, but those observations, as has been repeatedly pointed out, must be read along with the facts of the case. A careful reading of the judgment shows that the Judicial Committee of the Privy Council were dealing only with the effect and interpretation of s. 65. We do not think that that case supports the wide proposition urged on behalf of the appellant.

19. The result is that the appeals fail and are dismissed with costs.