MAHARAJ BAHADUR SINGH Vs. NARI MOLLANI

JUDGEMENT

(1.) The question involved in this rule is whether the learned Munsif, Second Court, Rampurhat, had jurisdiction to entertain a claim preferred by opposite party No. 2, Dolejannessa Bibi under Order 21, Rule 58, Civil P. C., in Rent Execution Case No. 399 of 1935 started in that Court by the petitioner, Maharaja Bahadur Singh, against the opposite party No. 1, Nari Mollani. The learned Munsif entertained the same and allowed it.

(2.) On 17 April 1934 the petitioner instituted a suit for recovery of rent of an occupancy holding from opposite party No. 1 and one Radhika Prosad Mondal. The period for which rent was claimed in that suit ended with Chaitra 1340. Radhika pleaded that he had no interest in the holding at any time and the suit was dismissed against him on that footing. The Court however passed a decree against opposite party No. 1 on 30 January 1935. It is this decree which: was put into execution on 1 March 1935 in the aforesaid execution case under the special procedure provided for in Chap. 14, Ben. Ten. Act. The opposite party No. 1 had during the pendency of the said suit for rent transferred the entire holding to opposite party No. 2 by a registered instrument. The date of this transfer is 26 May 1934, corresponding to 12th Jaistha 1341. In her written statement, filed on 28 June 1934, opposite party No. 1 stated that she had transferred the holding to opposite party No. 2. The petitioner knew of the transfer, but did not add opposite party No. 2 as a defendant in his suit for rent. The notice of the transfer prescribed by Section 26-C, Ben. Ten. Act, and the landlord's transfer fee did not, however, reach the petitioner before the decree in the said suit for rent.

(3.) On 4 April 1935 opposite party No. 2 filed her claim under O 21, Rule 58, Civil P. C. It is admitted that if the decree which the petitioner obtained in his suit for rent was a rent decree within the meaning of the Bengal Tenancy Act, which could be executed under Chap. 14 of the said Act, the claim so preferred is not entertainable. The provisions of Section 170 (1), Ben Ten. Act, are clear on the point. If, however, it is a decree which cannot be executed under the procedure of Chap. 14 it is entertainable. The question in my judgment depends upon the question as to whether Section 65, Ben. Ten. Act, is attracted to the aforesaid decree. In Jintendra Nath V/s. Mon Mohan 1930 P C 193, Sir George Lowndes, in considering the effect of Section 170 (1), Ben. Ten. Act, made the following observations at p. 222 of the report: The effect of this provision is that there cannot be an investigation in execution proceedings held under Chap. 14 of the Tenancy Act, of claims by third parties to an interest in the tenure . . . In their Lordships view it is only arrears of rent that are charged by Section 65 upon, the tenure, and it is only such arrears, that can be realized in execution by sale of the tenure. Chap. 14 of the Act, does not purport to enlarge or restrict the exercise of this right, but only provides the machinery for working it out. If the landlord seeks to use this machinery for the recovery of something that is not rent, to the prejudice of a third party on whom the decree is not binding, it would be manifest injustice to deny him the right to object, and it would require very clear words in the Act to induce their Lordships to impose this penalty upon him.