Dwaraka Singh vs Nema Singh and Others

Fazl Ali, J.—The circumstances which have given rise to this application are these: The petitionsr brought a suit against one Garigu Gope in the Court of the Munsif of Aurangabad for the recovery of the arrears of rent for the years 1331-1333 Fs. On 15th September 1927 the suit was decreed and the petitioner proceeded to execute the decree and in the execution of the decree the holding of the judgment debtor was attached.

The opposite party then preferred a claim under Order 21, Rule 58, to the property attached in execution on the ground that his brother Thakur Singh had purchased the holdings in question by means of two kabalas dated 6th July 1915 and 14th June 1918 respectively, one of these kabalas being an unregistered document. On 22ad March 1928 the learned Munsif before whom the execution proceedings were pending allowed the claim and released the property from attachment. The petitioner then came up in revision to this Court and obtained a rule.

The learned advocate for the petitioner has attacked the order of the learned Munsif on various grounds, but the principal ground is that under the provisions of Section 170 Clause (1), Ben. Ten. Act, the claim of the opposite party under Order 21, Rule 58, should not have been entertained. Section 170(1), runs as follows:

Sections 278 to 283 (both inclusive) and 310-A, Civil P.C., shall not apply to a tenure or holding attached in execution of a decree for arrears due thereon.

It may be mentioned that Order 21 Rule 58, of the new Code corresponds to Section 278 of the old Code.

Now, the learned Munsif has found that the kabalas were genuine documents and that the holding in question had been transferred to the opposite party under them. It has also been found that the opposite party has been paying rent for the holding in question to the petitioner, although there is no clear finding that the rent for the years in suit had been actually paid by the opposite party to the petitioner. The question therefore to be decided by me is whether in these circumstances the provisions of Section 170(1), Ban. Ten. Act, will bar the claim of the opposite party under Order 21. Rule 58. The learned advocate for the petitioner has cited before me the following cases in support of his contention that the claim of the opposite party would be barred in the circumstances of the preseut case:

Rameshwar Singh Bahadur Vs. Mt. Rajo Chowdhrain, Rameshwar Singh Bahadur Vs. Puran Chandera Mansali, Amrita Lal v. Nemai Chand [1901] 28 Cal. 382 and Makbul Ahmad v. Rakhal Das 4 C.W.N. 732.

It has been laid down generally in all these cases that the provisions of the CPC as to claim cases namely under Order 21, Rule 58, shall not apply to a tenure or holding attached in execution of a decree for arrears of rent thereof and it has also been laid down in some of the cases that a landlord is not bound to go beyond his own record to enforce his claim for arrears of rent and any person not recorded as tenant must seek his remedy elsewhere and cannot be permitted to stand in the way of the landlord selling the holding for the realization of the decree obtained against his recorded tenant. The decision, however, which applies more closely to this case than any of the other cases which have been cited is the one given in Makbul Ahmed v. Rakhal Das Hazra 4 C.W.N. 732. In that case it was found by the first Court that the holding put up to sale was not the holding of the ostensible judgment debtor but; was the holding of the objector and on this finding the Court allowed the claim and directed that the attached property should be released from attachment.

The decree holder, however, moved the High Court and the order of the Munsif was reversed on the ground that the case was covered by the provisions of Section 170, Ben. Ten. Act. One of the arguments raised in that case was that the operation of Section 170, Ban. Ten. Act, was confined to claims to the tenure and not claims which were adverse to the tenure and in which the nature of the question to be tried was whether the property claimed was part of the tenure or not. The objection was, however, overruled and the view taken was that the provisions of Section 170 were quite general and were applicable to the facts of that case. It must, however be mentioned that there was some conflict in the Calcutta High Court on the question as to whether Section 170, Ben. Ten. Act, was confined to the claims to the tenure or whether it applied also to claims adverse to the tenure and those cases in which the nature of the question to be tried was whether the property claimed was part of the tenure or not. On this question there was a reference to a Full Bench of the Calcutta High Court and in Amrit Lai v. Nemai Ghand [1901] 28 Cal. 382 it was held by the majority of the Judges, Banerjee, J., dissenting that Section 170, Ben. Ten. Act, barred a claim u/s 278, Civil P.C. to a tenure or holding attached in execution of a decree due thereon in all cases where it was shown that the decree was one for such arrears. It may be mentioned that Banerjee, J., who gave the dissenting judgment and whose view was that the scope of Section 170, Bom. Ten. Act, was not so wide as has been held by the other Judges made the following observations in the course of his judgment:

Upon a claim u/s 278 Civil P.C., being preferred, it therefore, lies upon the party opposing the claim to show that the claim is barred by S, 170. He can show that by showing that upon the claimant''s own case, Section 170 applies to it and bars the application of Section 278. That will be the case, where the claim is of this nature, namely that the �claimant admits, that the tenure or holding attached is held under the decree holder, that arrears of rent are due thereon, and. that the decree is in respect of such arrear, 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 a wrong person, that the claimant was the pardon 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 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 buy, the land said to constitute the tenure or holding attached, was not hold by the claimant under the decree Solder, but was held by him under an independent right, and that the decree for arrears is, consequently not a decree to 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.

Now one of the illustrations given by Banerjee, J., in his judgment seems to be on all fours with the facts of the present case: and, if the view taken by him is correct, as I have no doubt it is, it is clear that the claim in the present case will be barred. The position here is that: the opposite party does not deny that the petitioner decree-holder is the landlord of the holding that was attached. It is also not expressly controverted by him in his petition of claim that there were actually arrears due on the holding for the years in suit. Thus the only position which could have been taken up by him in the case was that the rent suit ought to have been brought not against Gangu Gope but against himself. It is clear in view of the provisions of Section 170 that once the claimant was found to have taken up that position his claim under Order 21, Rule 58 :(could not be entertained. It is, however, argued by the learned advocate for the opposite party that Banerjee, J., has laid some stress on the question as to whether any arrears were due on the holding or not. It is also urged by him that it was for the decree holder to show and not for the claimant to deny that arrears were actually due on the holding. The following observations which I quote from the judgment given by Maclean, C.J., in the case, which has been referred to by me will be sufficient answer to this question:

The person making a claim or raising an objection u/s 278 is entitled in the first instance to prefer such claim or objection, and the onus then lies upon the other side to show that Section 170 is a bar to the further prosecution of that claim. He must show that the tenura or holding has been attached in execution of a decree for arrears due thereon. But, if he produces the decree under which he is proceeding in execution, and that decree, upon the face of it, shows that it is a decree for arrears of rent due upon the tenure or holding attached in execution of the decree, it seems to me that he has sufficiently discharged such onus and that the Court ought not to proceed further with the investigation of the claim u/s 278, otherwise this somewhat extraordinary result would ensue, viz., a long and possibly intricate enquiry" u/s 278 not for the purpose of investigating the claim or objection under that section, but with the preliminary object of ascertaining, whether Section 170 was or was not a bar to the proceeding u/s 278. If that were so, in the majority of, if not in all, oases Section 170 would become almost a dead letter and I feel much hesitancy in placing such a construction upon Section 170 as would tend to so abortive a result. In other words the claim or objection u/s 278 would in effect be investigated under colour of the preliminary enquiry whether or not the decree was one for arrears due on the tenure or holding attached. This, to my mind, is not what the legislature intended by Section 170.

Thus in this case the fact, that the petitioner had the decree in his favour would be quite sufficient to discharge the onus placed in the first instance upon him by law of proving that the decree was a decree for arrears due on the holding. Mr. Sarjoo Prasad cited before me the case of Sarba Sundari Dasi v. Harendra Lal Boy [1910] Cri.L.J. 549 in which it was laid down that a claimant under Order 21, Rule 60, Civil P.C. is in no way bound by the recital in the decree under execution, a decree to which he was no party. The rule laid down in that case is one to which no exception can possibly be taken. But all that it means is that the mere fact that there is a decree for rant will not debar the opposite party from showing that it was in fact not a decree for rent. There is absolutely no conflict between the rule laid down in this case and the observations of Maclean, C.J., to which I have referred, which is to the effect that the decree will be sufficient merely) to shift the onus from the decree-holder to the claimant.

In my opinion the present case is concluded by authorities and the learned Munsif had absolutely no jurisdiction to entertain the claim of the opposite party.

I would therefore allow this application with costs and set aside the order of the learned Munsif allowing the claim of the opposite party and releasing the property from attachment. The execution proceedings will now be restored and the execution will proceed.