MANIR MOMIN Vs. KAMESHWAR SINGH
LAWS(PAT)-1952-1-11
HIGH COURT OF PATNA
Decided on January 08,1952

MANIR MOMIN Appellant
VERSUS
KAMESHWAR SINGH Respondents

JUDGEMENT

Reuben, J. - (1.) This appeal by the plaintiffs raises a point of limitation. It arises out of a suit for declaration of title to and confirmation of possession of a holding of 2 bighas 5 katnas 8 dhurs in village Bharathi in 'tauzi' No. 6424, of which the proprietor is the defendant second party, and, in the alternative, for recovery of possession thereof. The plaintiffs-appellants are two brothers who, in 1921, purchased the holding from the original tenants, the defendants third party, by a registered sale deed, so that under Section 26B of the Bihar Tenancy Act the sale is binding on the landlord proprietor. The landlord proprietor, nevertheless, in the year 1941, sued the original tenants, defendants third party, for arrears of rent in respect of the holding and got a decree. In that suit, plaintiff No. 1 was impleaded as a defendant. The landlord decree-holder then put the decree into execution and purchased the holding at an auction sale held on the 14th of June 1944. He took delivery of possession over the holding on the 7th of May 1945 and settled it with the defendants first party. The Munsif, holding that plaintiff No. 2 not being a party to the rent decree is not bound by it, decreed the suit to the extent of his eight annas share of the holding. His decision has been reversed and the suit dismissed in appeal by the Subordinate Judge, Darbhanga, on the ground that the suit was barred, under Article 11 of the Schedule to the Indian Limitation Act, inasmuch as it was brought more than one year after an order passed in the rent execution case rejecting an objection under Order XXI Rule 58 of the Code of Civil Procedure filed by the two plaintiffs. This decision has been upheld by Shearer, J., who considered himself bound by the decision of a Division Bench of this Court reported in 'SUBEDAR SINGH v. RAMPRIT PANDE', 11 Pat L T 28, although he felt doubtful of its correctness.
(2.) The objection under Order XXI Rule 58 was rejected by the executing Court on the ground that under Section 170 of the Bihar Tenancy Act it was not maintainable. Sub-section (1) of Section 170 of the Bihar Tenancy Act provides that: "rules 58, 63 (both inclusive) and 89 of Order XXI of the Code of Civil Procedure, 1908, shall not apply to a tenure or holding or portion of a holding attached in execution of a decree for arrears due in respect of the tenure or holding." Here, it is not denied that the defendant second party is the landlord of the holding in suit, nor that the rent of the holding was in arrears. Nor is it denied that the decree obtained by him was a decree for arrears of the rent of the holding. In these circumstances, it is well-settled that an application under Order XXI, rule 58 will not lie 'AMRITA LAL v. NEMAI CHAND', 28 Cal 382 (FB); 'RAMESHWAR SINGH v. RAJO CHOWDH-RAIN', 7 Pat L T 625; RAMESHWAR SINGH v. PURAN GRANDER', 7 Pat L T 717; 'DWARKA SINGH v. NEMA SINGH', 10 Pat L T 118; 'DEO-NANDAN PRASAD V. PIRTHI NARAYAN', 11 Pat 790; 'SURPAT SINGH v. SHITAL SINGH', 15 Pat 614; and 'HARIHAR PRASAD v. PRASAD MAH-TON', AIR 1950 Pat 565. The leading case on the subject is the Full Bench decision in 'AMRITA LAL BOSE'S CASE" where the question referred to the Full Bench was: "Whether Section 170 of the Bengal Tenancy Act bars a claim under Section 278 of the Code of Civil Procedure to a tenure or holding attached in execution of a decree for arrears due thereon, in all cases, or 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, decided that it bars such a claim in all cases. The dissenting Judge, Banerjee, J., drew a distinction between the class of cases in which the bar operates and the class in , which it does not in words which have often been cited and will bear a fresh repetition: "Upon, a claim under Section 278 of the Code of Civil Procedure being preferred, it, therefore, lies upon the party opposing the claim to show that the claim is barred by Section 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 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 a wrong person, but the claimant was the person entitled to the tenure of 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 off 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 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 nor can it be said that the case is one of a tenure or holding attached in execution of a decree for arrears due thereon as the decree sought to be enforced would go to show." The case with which we are concerned clearly falls within the first class regarding which Banerjee, J., agreed that the bar of Section 170 will operate. It is not necessary for us to consider here whether the opinion of Banerjee, J., regarding the other class should be preferred to the view expressed by the majority of the Full Bench.
(3.) From what I have said, it will appear that the Executing Court rightly refused to entertain the objection under Order XXI, Rule 58 on the ground that it had no jurisdiction to entertain it. The question is whether such an order operates under Article 11 of the Schedule to the Limitation Act to cut down to one year the ordinary period of limitation for the institution of a suit for declaration of title to and recovery of possession of immovable property,;


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