- (1.) THIS is an application in revision by the decree-holder, and is directed against the order of the learned first Munsif of Patna, dated 18-5-1951, in Miscellaneous Judicial Case No. 28 of 1951. The only question for decision is if the learned Munsif was right in his view that Section 170, Bihar Tenancy Act, was not bar to the application which the first opposite party filed, purporting to be an application under Order 21, Rule 58, Civil P. C.
(2.) THE material facts are the following. THE petitioner brought a suit for rent in respect of the holding in question and obtained a decree. In execution of the decree, the holding was attached. THE first opposite party then made an application purporting to be an application under Order 21, B. 58, Civil P. C., and the main ground of attack was that the petitioner decree-holder had sued a wrong person in his suit for arrears of rent. THE first opposite party claimed that he had purchased the holding by a registered sale-deed, dated 10-6-1951, and that he had paid the landlord's fee and the landlord knew of the purchase of the holding. Before the learned Munsif the contention of the decree-holder petitioner was that Order 21, Rule 58, Civil P. C. did not apply and Section 170, Bihar Tenancy Act was a complete bar to the maintainability of the application. The learned Munsif came to the finding that the decree which the present petitioner obtained against the judgment-debtors had the effect of a money decree inasmuch as the judgment-debtors had no interest in the land in suit. In that view of the matter the learned Munsif held that the first opposite party could maintain an application under Order 21, Rule 58, Civil P. C. The point which falls for decision in this case is concluded by several authorities of this Court. Learned Counsel for the petitioner has referred "to the decision in -- ' 5 Learned Counsel for the opposite party has referred to two other decisions, -- ' Jagdishpur Zamindari Co. Ltd. v. Sitaram', AIR 1952 Pat 7 (D) and -- 'Md. Annas v. Qazim', AIR 1953 Pat 156 (E) . The first of the aforesaid two decisions is a Single Judge decision of Shearer J. That was a case where the land attached had ceased to constitute one occupancy holding and by reason. of the provisions contained in Section 25A, Bihar Tenancy Act, constituted several holdings. In. these circumstances, it was held that the application by an objector under Order 21, Rule 58, Civil P. C., was maintainable. Shearer J. referred to the decision in AIR 1950 Pat 565 (A) and pointed out that that decision was not in point inasmuch as the land which was attached in the case, under consideration of Shearer J., had ceased to constitute one occupancy holding and,. therefore, the decree obtained by the landlord. was not a decree for rent in accordance with, the provisions of the Bihar Tenancy Act. His Lordship pointed out, however, that the decision in AIR 1933 Pat 32 (C) was approved and followed in AIR 1950 Pat 565 (A). The second decision to which learned Counsel for the opposite party has referred is a decision to which I was a party -- 'Mahomed Anas T. Qazim', AIR 1953 Pat 156 (E). That was a case in which it was held that a claim under o. 21, Rule 58, Civil P. C., was maintainable when the decree sought to be executed was a decree for arrears of rent obtained by a co-sharer landlord without impleading in the suit his other co-sharers. The finding of fact arrived at in that case was that the decree was obtained by the six annas landlords without impleading the other co-sharers. In those circumstances it was held that a claim under Order 21, Rule 58, Civil P. C., was maintainable. A number of earlier decisions of the Court on the point were examined and the decisions in AIR 1937. Pat 278 (B) and AIR 1933 Pat 32 (C) were approved. It would thus appear that the point under consideration in the present case is completely covered by several authorities of this Court in which it has been uniformly held that the investigation of a claim on an application in which the ground of attack is that the decree for rent, which is otherwise in accordance with the provisions of the Bihar Tenancy Act, was obtained against a wrong person is barred under the provisions of Section 170 of the Bihar Tenancy Act. The learned Munsif wrongly assumed jurisdiction in investigating such a claim.
(3.) THE result, therefore, is that the application succeeds, the order of the learned Munsif is set aside and it must be held that investigation of the claim of the opposite party is barred under the provisions of Section 170, Bihar Tenancy Act. THE petitioner decree-holder is entitled to his costs throughout. Hearing fee Rs. 32/- only. Imam, C.J. I agree.;