HARIHAR PRASAD Vs. PRASAD MAHTON

JUDGEMENT

(1.) This revision petition has been filed by the decree-holders against the order dated 26-4-1949, passed by the Munsif, and Court, Gaya, whereby he has held that Prasad Mahton, opposite party 1, is entitled to press his petition under Order 21, Rule 58, Civil P. C., in the execution proceeding started by the petitioners.

(2.) The petitioners who are 16 annas landlords claim to have obtained on 8-12-1947, a decree for rent against Sohrai Gope, the tenant recorded in their serishta in respect of a holding having an area of 10.29 acres. They executed the decree in Ex. case No. 496 of 1948. After service of writ of attachment and sale proclamation Prasad Mahton, oppceite party 1, filed an application under Order 31, Rule 68, Civil P C., for release of 4.93 acrea out of the holding in question. He claimed to have purchased the area by a registered sale.deed dated 9-8-1947. His case was that as he had not been impleaded in the rent suit, the decree for rent passed in favour of the landlords would have the effect of a "money decree," and hence he was entitled to have his claim adjudicated under Order 21, Rule 58, Civil P. C., and get a release of the area purchased by him from attachment and sale. According to him, Section 170, Bihar Tenancy Act was no bar to such an investigation. The Executing Court has accepted his contention. Hence, the revision petition to this Court by the decree-holders.

(3.) Mr. Lakshman Saran Sinha, the learned counsel for the petitioners, urged that Section 170, Bihar Tenancy Act is a complete bar to the investigation of the claim set up by opposite party 1. He relied on several decisions of this Court in support of bis contention, namely, the cases of Deonandan Prasad v. Pirthi Narayan, 11 Pat. 790: (A.i.r. (20) 1933 Pat. 32); Surpat Singh v. Shital Singh, 15 pat. 614: (A. I. R. (23) 1936 pat. 480); Chhuter Kumari Devi v. Bhagawat Prasad, 15 Pat. 812 : (A. I. R. (24) 1937 Pat. 278) and Alakhnandan Prosad v. Mt. Bibi Salma, A.I.R. (24) 1937 Pat. 341 : (169 I. C. 729). He referred us to the proviaiona of Section 170, Clause (1), Bihar Tenancy Act which runs as follows: "Rules 58 to 63 (both inclusive) and 89of 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." According to him, as the decree obtained by the landlords was in respect of the entire holding, Section 170, Clause (1) was a bar to any investigation under Order 21, Rule 58, Civil P. C.