Decided on July 31,1952

MD.ANAS KHAN Appellant
QAZIM KHAN Respondents


Ramaswami, J. - (1.) The question in this case is whether the Munsif of Patna acted beyond his jurisdiction in entertaining a claim under Order 21, Rule 58, Civil P. C., in proceedings in execution of a rent decree.
(2.) The petitioners had obtained the rent decree in question on the 23-9-1948, as regards a holding of the area of 1 bigha 6 kathas, 9 dhurs comprising plot No. 198 under Khata No. 100 and plot No. 309 under khata No. 101, in village Sadiqpur. The rent decree was obtained against one Mundar Kuer who was a recorded tenant. The opposite party, however, claimed that they had purchased the entire holding on the basis of a sale deed dated 2-12-1937, long before the institution of the rent suit. The opposite party further claimed that after the execution o the Kebala they obtained possession of the holding and gave it in thica to Sanichar Sao through a registered document. The main objection of the opposite party was that the petitioners were not 16 annas landlords with respect to the holding but they were entitled to only 6 annas share and on this ground it was contended that the decree had not the effect of a rent decree and Section 170, Bihar Tenancy Act, did not constitute a bar. The learned Munsif examined the question whether the petitioners were 16 annas landlords, and upon a consideration of the evidence adduced came to the finding that the case of the opposite party on his point was true and the petitioners were only 6 annas landlords of the holding in dispute. Accordingly, the Munsif held that the decree obtained by the petitioners was a money decree and the opposite party could prefer the claim under Order 21, Rule 58 and get the holding released from attachment. In support of this rule, Mr. Syed Akbar Hussain presented the argument that the learned Munsif was in error in holding that the opposite party could prefer a claim under Order 21, Rule 58, in the execution proceeding. The argument of learned Counsel is founded upon the terms of Section 170, Bihar Tenancy Act which states: "Rules 58 to 63 and 89 of Order 21 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.)"
(3.) The contention of learned Counsel is that Section 170 does not in specific terms refer to a rent decree, and there is no warrant for holding that the section operates as a bar only if the decree obtained by the landlord was a rent decree in execution of which the tenure or holding could be sold for its own arrears. In my opinion, the argument of learned Counsel proceeds upon a misconception. It is true that Section 170 does not in express terms refer to a rent decree, but the meaning of the section is clear if it is read in the context of Section 158-B, which explains under what conditions the tenure or holding would pass in execution of a decree.;

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