LANKA VENKAYA Vs. SREE MEERZA RAJA, SREE POOSHAVATI ALAKA NARAYANA GAJAPATI RAJU MAHARAJU MANYA SULTAN BAHADUR VARU, ZAMINDAR OF VIZIANAGARAM

JUDGEMENT

(1.) The petitioner in this Civil Revision Petition is defendant 1 in the suit brought by the landlord against him and defendant 2. The suit was to recover a sum of Rs. 204 odd, being the balance of expenses of distress levied by the landlord upon the moveable property of defendant 1. In that suit defendant 1 was ex parte and defendant 2 was exonerated. The result was that a decree was passed ex parte against defendant 1 for a sum of Rs. 204 representing the landlord's claim for expenses of the distraint. The facts were that defendant 1 was a raiyat of the plaintiff, and having fallen into arrears with his rent to the extent of Rs. 48, his landlord exercised the right of distraint Under Section 77(ii), Madras Estates Land Act, and distrained a cart and a cow belonging to defendant 1. For some reason which does not appear, although the distraint was made in July 1931, the sale did not take place till November. At the time of the sale the landlord exhibited to the sale officer particulars of expenses incurred by him in keeping the cow. The expenses amounted to a sum of Rs. 289, whereas the cow with the cart at the sale only realized a sum of Rs. 32. After deducting the expenses of the sale the balance was handed over by the sale officer to the plaintiff.

(2.) The question which is raised in this Civil Revision Petition is whether the Court of the District Munsif exercising Original Civil Jurisdiction had jurisdiction to entertain the landlord's claim. There is no doubt that the claim was one which was recoverable under the procedure laid down by the Estates Land Act. If the only means of recovering these expenses were the means provided by the Estates Land Act, clearly the District Munsif in the exercise of his original civil jurisdiction had no jurisdiction to entertain and adjudicate upon this suit. A landlord Under Section 77 of the Act may recover arrears of rent either by means of a suit before the Collector or he may, upon his own responsibility, distrain the moveable property of the defaulting raiyat. This responsibility is very real; for Section 81 provides that the distress shall not be excessive and that the value of the property distrained must as nearly as possible be equal to the amount of the arrears due and the costs of the distress. Section 86 provides that in the case of the distraint of cattle the distrainer shall provide necessary food for the cattle, and the cost thereof shall be a charge against the defaulting raiyat and shall be recoverable as a cost of the distress. And Under Section 88 the distrainer will be liable for damages if the property distrained is by his negligence stolen, damaged or destroyed. It seems to me that the possibility of the distress yielding less than the expenses of the distraint is also a risk which the distrainer undertakes when he levies a distress.

(3.) Section 106 contains the provisions for recovery of the expenses of a distraint. It provides first of all that from the proceeds of every sale of the distrained property the sale officer shall make a deduction on account of the costs of the sale; and that he shall pay to the distrainer the expenses incurred on account of the distraint including the expenses, which Under Section 86, the distrainer is entitled to recover as the cost of the distress. The remainder shall be applied to the discharge of the arrear for which the distraint was made; and then, should it happen that any balance remains from the sale proceeds, that balance is to be paid to the defaulter. It is admitted that apart from the Act a landlord levying a distress has no right to charge against the defaulting tenant the expenses of the distraint. The distrainer is not a bailee of the property which he takes under a distraint. He has therefore none of the rights of a bailee. The rights to distrain and the remedy for recovering the expenses of the distress are alike the creatures of the Act. There is no right to recover the expenses of a distress except in the manner provided by the Act. This is made quite clear by Section 189 which says: A Collector or other Revenue Officer specially authorized under this Act shall hear and determine as a Revenue Court all suits and applications of the nature specified in parts A and B of the Schedule, and no civil Court in the exercise of its Original Jurisdiction shall take cognizance of any dispute or matter in respect of which such suit or application might be brought or made.