PANDURANG Vs. SITARAM

JUDGEMENT

(1.) MACNAIR , Offg. J.C. 1. Under the terms of a lease deed the consideration was payable each year in the month of Baisakh. In execution of a decree the non-applicants obtained a prohibitory order under Order 21, Rule 43, Civil.P.C., in respect of the right of the lessor to receive lease money for the Fasli year 1333 about eight months before this money was payable. This right was brought to sale and was sold before the payment became due. The suit out of which this application arises was for recovery of the lease money for the Fasli year 1333 and the plaintiffs obtained a decree against the lessee. In revision it is first urged that the Small Cause Court had no jurisdiction to try this suit. It is sufficient to say that according to the plaint the lease money could be attached and sold. After sale the right to receive lease money could not be immovable property. The plaint, therefore, virtually alleged that a debt of a small cause nature existed and the suit was properly tried in the Small Cause Court.

(2.) IT is next urged that the right to receive lease money at a future date could not be attached or sold. This contention appears to me valid. The lessor and lessee of a moveable property possess as against each other rights detailed in Section 108, T.P. Act. The right of the lessee to pay at the time of the attachment was contingent: for the money was not payable if the lessee subsequently lost possession in certain ways. The learned Judge has stated that nearly half the year has passed and the lessee was in possession: but he might not have continued in possession during the remainder of the year. I find no authority for the proposition that the right to receive lease money can be attached before the period for which the lease money is payable has expired. In Lachhmi Narayan v. Dharamchand A.I.R. 1926 Nag, 396 Hallifax, A.J.C., speaks of a right to recover a share of profits which have already been collected by the lambardar. He refers to Sheogobind Singh v. Gouri Prasad A.R.R. 1925 Pat. 310, where it was held that an arrear of rent is moveable property. I hold then that the right which is attached was not existing debt.