SARBA SUNDARI DASI Vs. HARENDRA LAL ROY CHOWDHURY

JUDGEMENT

(1.) We are invited in this Rule to set aside an order by the Court below under Order XXI, Rule 60, of the Code of 1908, which corresponds with Section 280 of the Code of 1882. ft appears that the petitioner before us in execution of a decree for arrears of rent attached the disputed property, whereupon the opposite party preferred a claim under Order XXI, Rule 58, of the Code on the allegation that they were in possession of the property which was not liable to be sold in execution of the decree obtained by the petitioner. The petitioner thereupon contended that Order XXI, Rule 58, had no application by reason of the provisions of Section 170 of the Bengal Tenancy Act. That section provides that, Secs.278 to 283 and 310A of the Code of Civil Procedure shall not apply to a tenure or holding attached in execution of a decree for arrears due thereon. The claimants in answer to this objection contended that the property attached was neither a tenure nor a holding within the meaning of the Bengal Tenancy Act. The Court below has investigated this point and has come to the conclusion that the property attached is a piece of homestead land let out for building purposes to which the provisions of the Bengal Tenancy Act have no application. In this view, the Court has held that Section 170 of the Bengal Tenancy Act does not exclude the operation of Order XXI, Rule 58, of the Code and as the claimants have established their allegation, the claim, must be allowed. We are now invited to set aside this order on the ground that it was not open to the Court below to determine the nature of the property attached, and that the claimants were bound by the statement in the decree under execution that the property was one upon which the rent was a prior charge under Section 65 of the Bengal Tenancy Act. In our opinion, there is no foundation for these contentions. The claimants under the general law were entitled to the benefit of the provisions of Order XXI, Rules 58 to 60, of the Civil P. C.. Their allegation was that the property, which was owned by them and of which they held possession, had been improperly attached by the decree-holder in execution of his decree against persons who had no interest whatsoever in the holding. The decree-bolder sought to exclude the operation of Order XXI, Rules 58 to 60 upon the allegation that the property attached was a tenure or holding within the meaning of Section 170 of the Bengal Tenancy Act. It is manifest that the claimants are in no way bound by the recital in the decree under execution, a decree to which they were not parties. When the jurisdiction of a Court is sought to be excluded on the ground that the property attached is of a particular description, it is undoubtedly open to the Court to ascertain the true nature of the property, otherwise the result would be that any person, who had obtained a decree upon the allegation that the provisions of the Bengal Tenancy Act were applicable to the particular property, would be placed in a position to commit a fraud. We must, therefore, hold that the Court below had jurisdiction to investigate the claim.

(2.) The result, is that this Rule is discharged with costs.

(3.) We assess the hearing fee at two gold mohurs.