JUDGMENT
Richard Garth, C.J.
1. This suit was brought by the plaintiff, a zamindar, against the wife of the Nawab Nazim of Bengal, for rent of a patni for the year 1284 and part of the year 1285.
2. The defendant holds the patni under a grant from the Nawab Nazim, and for the purposes of this suit is in the same position as the Nawab himself would be.
3. The question between the parties turned out to be a matter of account; and in determining that question one point, which was raised by the plaintiff’ was, that certain sums, which were admittedly paid by the defendant to the Government for revenue in the year 1284, and which the plaintiff ought to have paid himself, ought to be considered (as payment made by the defendant to the plaintiff), and as such might be appropriated by the plaintiff in discharge of the rent of the year 1283, which otherwise was barred by limitation. The plaintiff in this suit did not claim any rent for the year 1283.
4. The Subordinate Judge was of opinion that the plaintiff had no right to appropriate these sums towards payment of the rent of 1283; and he therefore directed the parties to try and settle an account between themselves of the debits and credits for the years 1284 and 1285, excluding from the account the rent of 1283. The result was that the parties virtually came to an agreement, (except as to a sum which is now not in question), and the Subordinate Judge made a decree accordingly in favour of the plaintiff’ for Rs. 1,359-9-11.
5. That decree was appealed to the District Judge, and he seems to have considered that, as the parties had agreed to the account in the Court below, he ought not to interfere; so he dismissed the appeal with costs.
6. I should mention, however, that another point was raised in the Courts, below, which I shall deal with presently, namely, as to how far Act XVII of 1873, which is called the “Nawab Nazim’s Debts’ Act,” applies in this suit for the purpose of protecting the tenure, in respect of which rent is claimed, from being sold in execution.
7. The main point which has been pressed upon us in this appeal by the learned pleader for the plaintiff is, that the Subordinate Judge was wrong in holding that the payments of revenue which were made by the defendant for the plaintiff in the year 1284 were not payments to the plaintiff in such suit, as to give the latter a right to appropriate them to the discharge of the rent of 1283 under Sections 59 to 611 of the Indian Contract Act.
8. These sections merely enact the English law with regard to the appropriation of payments; and it is contended that if the payments of revenue made by the defendant to the Government can be considered as payments made to the zamindar, the plaintiff has a right to appropriate them to the discharge of the rent of 1283, and that in the absence of any specific appropriation they would naturally under Section 61 be appropriated to the payment of the earlier arrears of rent.
9. Now, assuming that we could consider these payments as made to the zamindar, I am not prepared to say that the appellant would not be right in his contention; but it seems to us impossible to consider them in that light. They are in reality the proper subject of set-off. They are payments made by the defendant to the Government, because the plaintiff would not pay them himself. They were made for the purpose of preventing the property being sold, and they were, therefore, moneys paid for the use of the plaintiff, and recoverable as such against him by the defendant. These sections, therefore, of the Contract Act, with regard to the appropriation of payments, are not applicable to the case at all.
10. The learned pleader for the appellant then argues that, if they are the subject of set-off it is wrong to allow them to be used by the defendant in this suit, because, at the commencement of this suit, they were not moneys legally recoverable against the plaintiff. (See Section 111 of the Civil Procedure Code).
11. We think, however, that Section 111 was never intended to enact any new law as to what is, or is not, the subject of set-off. It merely means to lay down rules as to the way in which subjects of set-off can be made available. That being so it seems to us that we have nothing further to decide; because, subject to the correctness of the point which was decided by the Subordinate Judge, it seems clear that the parties agreed to the account, which was the basis of the judgment of the lower Courts. Both the lower Courts evidently considered that to be so.
12. The other point raised in the case related rather to the execution of the decree than to the decree itself.
13. It was contended on behalf of the plaintiff that he is entitled to proceed to sell this tenure, which is part of the property of the Nawab Nazim of Bengal, in the ordinary course of execution; and that he is not bound in that respect by the provisions of Act XVII of 1873.
14. The 11th Section of the Act, to which we have been referred, provides that'”no suit shall be commenced or prosecuted, and no writ or process shall at any time be sued for against the person or property of the said Nawab Nazim, unless such suit be commenced, or such writ or process be sued for, with the consent of the Governor-General in Council first had and obtained;” and “any suit which at any time shall have been, or shall be commenced, and any writ or process which at any time shall have been or shall be sued for, against the person or property of the said Nawab Nazim, shall be of no effect, unless and until the consent of the Governor-General in Council certified in manner aforesaid is obtained.”
15. The contention of the defendant is that, having regard to this section, the plaintiff has no right to execute his decree in this suit against the property in question without the consent of the Governor-General in Council.
16. On the other hand, the plaintiff contends that this section has no application to a case of this kind; because this is a suit for rent, and the Act was not intended to apply to debts for rent but to debts of a different nature.
17. It seems to us, however, that this is just one of those cases in which the Legislature intended to protect the property of the Nawab Nazim. These two taluks formed part of his estates; and it was for the purpose of protecting those estates and of preventing their sale, that this Act was passed. A debt for rent is like any other debt; and we quite agree with the lower Courts that the consent of the Governor-General in Council will be necessary before the plaintiff can sell the property in execution. This appeal will, therefore, be dismissed with costs.
1 [See. 59: Where a debtor, owing several distinct debts to one person, makes a payment to him, either with express intimation or under circumstances implying, that the payment is to be applied to the discharge of some particular debt, the payment, if accepted, must be applied accordingly.
Application of payment where debt to be discharged is indicated.
Sec. 60: Where the debtor has omitted to intimate, and there are no other circumstances indicating, to which debt the payment is to be applied, the creditor may apply it at his discretion to any lawful debt actually due and payable to him from the debtor whether its recovery is or is not barred by the law in force for the time being as to the limitation of suits.
Application of payment where debt to be discharged is not indicated.
Sec. 61: Where neither party makes any appropriation, the payment shall be applied in discharge of the debts in order of time, whether they are or are not barred by the law in force for the time being as to the limitation of suits. If the debts are of equal standing, the payment shall be applied in discharge of each proportionately.]
Application of payment where neither party makes appropriation.
