Deonandan Prasad vs Pirthi Narayan and Others

Dhavle, J.—The only question raised in this revisional application is whether the claimant opposite party was entitled to apply under Order 21, Rule 58, Civil P.C., having regard to Section 170, Ben. Ten. Act, which provides that Rule 58 (among others), Order 21, Civil P.C., shall not apply to a tenure or holding attached in execution of a decree for arrears due therein. The decree in the present case was obtained by the petitioner against two malis, and the claimant came to Court with the allegation that those malis were his own under-raiyats, and not holders under the decree-holder landlord direct. The applicability of Section 170, Ben. Ten. Act, to cases of this kind was considered by a Full Bench of the Calcutta High Court in 1901 in Amrita Lal Bose v. Nemai Chand [1901] 28 Cal 382. The question formulated for the decision of the Full Bench was

whether Section 170, Ben. Ten. Act, bars a claim u/s 278 (now Order 21, Rule 58), Civil P.C., to a tenure or holding attached in execution of a decree for arrears due thereon, in all cases, whether the operation is confined to claims to the tenure or holding and does not extend to claims based on the ground that the property claimed does not form part of the tenure or holding attached.

The majority of the Full Bench, Banerjee, J., alone dissenting, ruled that Section 170, Ben. Ten. Act, barred a claim u/s 278, Civil P.C., in all cases where it was shown that the decree was for arrears due in respect of a tenure or holding. It will be seen that the question formulated did not leave it open to doubt that Section 170, Ben. Ten. Act, did bar such claims in certain cases. The clearest exposition of this point is contained in the judgment of Banerjee, J., who described the two classes of cases as follows. The first class was

where the claim is of this nature, namely, that the claimant admits that the tenure or holding is held under the decree-holder, that arrears of rent are due thereon, and that the decree is in respect of such arrears, but contends that the decree ought not to be allowed to be executed by the attachment and sale of the tenure, because it was obtained against the wrong person, that the claimant was the person entitled to the tenure or holding, and that, unless and until the landlord sues him and obtains a decree against him, the tenure or holding cannot be sold.

"Where that is the nature of the claim," the learned Judge continued,

Section 170 will bar the claim upon the claimant''s own case. But where the claim is of this nature, namely, that the tenure or holding attached, or rather, I should say the land said to constitute the tenure or holding attached, was not held by the claimant under the decree-holder, but was held by him under an independent right, and that the decree for arrears is, consequently, not a decree for arrears due in respect of such land, there the decree-holder cannot say that, upon the claimant''s own showing, Section 170 is a bar to the claim being entertained.

The distinction between these classes has also been expressed by taking the first class to consist of cases in which the claim is to the tenure or holding, and the second of cases in which the claim is adverse to the tenure or holding. In the former the claimant does not dispute the facts that the decree-holder is the landlord of the tenure or holding in suit, and that the decree is for arrears of rent due thereon. And as regards this class of cases all the learned Judges of the Full Bench were agreed that Section 170, Ben. Ten. Act, barred a claim u/s 278 (now Order 21, Rule 58), Civil P.C. In this class of cases the tenure or holding will pass in execution if the landlord proceeds under the special provisions of the Ben. Ten. Act, even though some of the persons interested in the tenure or holding may not have been impleaded as defendants; and it was recognized on all hands that the Act clearly excluded the operation in such cases of the general law as regards the putting forward of claims to attached properties by third parties in execution proceedings.

As regards the second class of cases, viz., cases in which the claim is that the property attached does not form part of the tenure or holding in suit, Banerjee, J., took the view that as the claimant was not a party to the decree under execution, it was open to him, notwithstanding Section 170 of the Act, to show, not indeed that he was entitled to the property, but that the arrears decreed were not due in respect of the attached property. This view was not accepted by the other Judges, who held that the section barred all claims that the property attached was not liable to attachment in execution of the decree.

The question however whether the section bars a claim under Order 21, Rule 58 when the claimant asserts that the decree under execution was not a rent-decree at all, but only a money-decree was not before the Full Bench. The section presupposes a rent-decree, and it has been repeatedly held that a claim may be made under Order 21, Rule 58 on the ground that the decree is not a decree of the kind presupposed in the section. Claims have, for instance, been allowed where it was shown that the subject-matter of the suit was not a tenure or holding, or that the decree was not a rent-decree because the landlord had brought his suit in respect of more than one tenure or holding, or not being the sole landlord of the tenure or holding, had failed to observe the special provisions of Section 148-A without which it was impossible for him to obtain a rent-decree.

No such claim was made in the present proceedings; the claimant merely said that he was the recorded raiyat and that the defendants against whom the landlord had proceeded were his (the claimant''s) under-raiyats. Judging from the order under revision, the claimant did not deny that the decree-holder was the sole landlord of the holding in suit or that arrears of rent were due in respect of it. It has been contended that he was entitled to show that the decree under execution was not a rent-decree, but it is plain that he was not entitled to show this by establishing that the decree was obtained against a wrong party. That would really be establishing that the decree is a nullity, and establishing it under Order 21, Rule 58 which is excluded by Section 170, Ben. Ten. Act. "To hold otherwise," said Ameer Ali, J., in the Full Bench decision in Amrita Lal v. Nemai Chand [1901] 28 Cal 382,

would in my opinion, give rise to the very difficulties which, it must be taken, the Legislature intended to avoid, and would launch the holder of a decree for arrears of rent upon a complicated, enquiry, the result of which may, after all, be wholly infructuous. The tenant against whom a decree for arrears of rent has been obtained may put forward a number of people to claim either in whole or in part the tenure or holding, and thus prevent the landlord from reaping the fruits of his decree.

That decision has been followed in several cases of a similar kind decided in this Court, to which reference has been made by Fazl Ali, J., in his referring order; and it seems to be absolutely beyond question that a third party cannot avail himself of Order 21, Rule 58 against the rent-decree merely on the ground that the tenure or holding in suit belonged to him. I would therefore hold that the petition of the opposite party under Order 21, Rule 58 was incompetent by reason of the fact that Section 170, Ben. Ten. Act, does apply in the circumstances; and I would allow this application in revision and set aside the order of the lower Court with costs. I would fix the hearing fee at one gold mohur.

Mohamad Noor, J.

I agree.