Surpat Singh and Others vs Shital Singh

Agarwala J.

This application in revision arises out of proceedings taken by the petitioners who obtained a decree for arrears of rent against the tenants recorded in their sharista. The execution proceedings were opposed by the opposite party who claimed to be in possession under purchases from the tenants of the holding. A petition under Order 21, Rule 58, preferred by the opposite party was upheld on the ground that in the Record of Rights other tenants besides the judgment-debtors are recorded in the landlord''s sharista. The Court below held that in these circumstances the decree obtained by the petitioners must be held to be a money decree, and in that view of the matter decided that Section 170, Ben. Ten. Act, does not bar the application of Order 21, Rule 58, Civil P.C. The question of law which arises for decision, therefore, is whether Section 170 bars the application of Order 21, Rule 58, in a case where the decree obtained by a landlord is not what is generally known as a ''rent decree'' but a money decree. In Amrita Lal Boss v. Nemai Chand Mukhopadhya (1901) 28 Cal 382, a Full Bench of the Calcutta High Court held that Section 170, Ben. Ten. Act bars a claim under the present Order 21, Rule 58, in all cases where it is shown that the decree was one for arrears of rent.

The matter has been agitated in this Court in a number of cases, some of which are reported in Rameshwar Singh Bahadur v. Rajo Chowdhrain 1926 Pat 210, Jwala Prasad, A.C.J., and Macpherson, J., held that Rule 58, has no application to proceedings in execution of a rent decree and that the landlord is not bound to go beyond his own record when enforcing a claim for arrears of rent. This decision was followed by Sen, J. in Rameshwar Singh v. Puran Chander 1926 Pat 213, and by Fazl Ali, J. in Dwarka Singh v. Nema Singh 1929 Pat 195. In the last mentioned case, Fazl Ali, J. cited an extract from the decision of Banerji, J. in the Full Bench case of the Calcutta High Court already referred to, namely, that a claim petition on behalf of the purchaser of a holding, who does not deny that the decree-holder is the landlord or that there were actually arrears due on the holding for the years in suit in respect of which the rent decree was passed but who attacks the decree on the ground that it has been wrongly obtained against the original tenant who has sold the holding to the claimant, is barred u/s 170, Ben. Ten. Act. In Deonandan Prasad v. Pirthi Narayan 1933 Pat 32, Fazl Ali, J. referred the case then before him to a Division Bench. The learned Judge observed in his order of reference that the point raised on behalf of the opposite party in the petition before him was that it was always open to a claimant under Rule 58 to show that the decree sought to be executed was not a rent decree. In that case the claimant contended that the decree had been obtained not against the recorded tenant but against the shikmidar or under-tenant. The Division Bench, before which the case was eventually laid, consisted of Khaja Mohammad Noor, J. and Dhavle, J. In the course of his judgment Dhavle, J. said:

It has been contended that he (that is to say, the claimant) 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.

The decision of the Full Bench of the Calcutta High Court already referred to was cited with approval. It appears therefore that from 1901 down to the decision last referred to, it has been held that in circumstances such as we have in the present case, a claimant is not entitled to prefer a claim under Order 21, Rule 58. I would therefore set aside the order of the Court below and allow the decree-holder-petitioner his costs. Hearing fee two gold mohurs.

Rowland, J.

I agree and would like to add some observations with reference to the decision in Bipra Das Dey v. Rajaram Banerji (1909) 36 Cal 765, a case in which a claim under the provisions of the old Code corresponding to Order 21, Rule 58, was in fact allowed. The circumstances of that case were peculiar. The suit was for arrears of rent not of one holding only but of two, and it was in pursuance of this decree so obtained and for the rent of both the holdings that the attachment was made. It could not, therefore, be said strictly and within the meaning of the words of Section 170 that the holding had been attached in execution "for arrears due thereon," so as to bar a claim under Order 21, Rule 58. The fact that the suit was for two holdings also had the effect that the decree was only a money decree and the decision is sometimes used in argument to support the contention that where the decree is only a money decree a claim under Rule 58 is not barred. But I am quite clear in my opinion that it does not support that contention. Where the decree is only a money decree, it has been settled by several decisions that on a sale in execution only the right, title and interest of the judgment-debtor will pass, and it is to be noted that Section 170 does not exclude a claim by any person interested in the land under Order 21, Rule 100. A person claiming the land adversely to the judgment-debtor can also sue for a declaration that the decree is not binding on him or that his interest has not passed by the sale. But the remedy by claim under Rule 58 is intended to be barred in all cases where the holding is put to sale for its own arrears; the only way of preventing the sale from taking place is payment of the decretal amount.