AMRITAA LAL BOSE Vs. NEMAI CHAND MUKHOPADEYA
AMRITAA LAL BOSE
NEMAI CHAND MUKHOPADEYA
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Francis W Maclean, K C I E C J -
(1.) The question submitted for our consideration is, whether Section 170 of the Bengal Tenancy Act bars a claim under Section 278 of the Civil P. C. 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.
(2.) There are, as has been pointed out in the reference, two conflicting decisions upon the point, the one reported in 4 Cal. W. Notes, 734, and the other in 4 Cal. W. Notes, 732.
(3.) The question is not free from difficulty and the answer is dependent upon the true construction of Section 170 of the Bengal Tenancy Act, Sub-section 1, which is in these terms: " Secs.278 to 283 (both inclusive) of the Code of Civil Procedure shall not apply to a tenure or holding attached in execution of a decree for arrears of rent due thereon." What is meant by the words, "shall not apply to a tenure or holding attached in execution of a decree for arrears of rent due thereon?" The person making a claim or raising an objection under Section 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 tenure 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 under Section 278; otherwise this somewhat extraordinary result would ensue, viz., a long and possibly intricate enquiry under Section 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 under Section 278. If that were so in the majority of, if not in all cases, 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 under Section 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.;
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