KRISHNA CHANDRA DUTTA CHOWDHURY Vs. DINA NATH BISWAS

JUDGEMENT

(1.) This Rule was issued on the opposite party to show cause why the order of the Subordinate Judge of Pabna, dated the 30 July 1926, refusing to entertain the claim of the petitioners under Order 21, Rule 58, Civil P.C, should not be set aside. The facts which have given rise to this Rule are: That Rai Bahadur Dinanath Biswas, who is the opposite party to the Rule, is the 8- annas owner of certain mehals and he created a patni tenure in respect of 9-annas share of his interest, treating the 8-annas as 16-annas, in favour of the Sanyals; that on the 22nd of Falgoon, 1317 B.S., the Sanyals sold the patni tenure by registered deeds of sale to the petitioners before this Court; that riot-withstanding, notice of purchase of patni by the petitioners, the zemindar brought a suit for rent in respect of the said patni against the Sanyals, who had parted with their interest in the patni at the date of the said suit and obtained a decree for arrears of rent on the 7 July 1925; that the decree-holder zemindar made three applications for execution, the last of which was on the 1 May 1926; that in this last application, the decree-holder, opposite party, instead of applying for attachment and sale of the patni tenure, under Ch. 14, Bengal Tenancy Act, applied for attachment and sale of only one-fourth share of the said tenure; that the said one-fourth share of the tenure was attached in pursuance of the application of the decree-holder and the petitioners preferred a claim to the attachment of the said share of the patni under Order 21, Rule 58, Civil P.C., before the Subordinate Judge of Pabna.

(2.) The learned Subordinate Judge rejected the claim holding that the claim was not maintainable by reason of the provisions of Section 170, Bengal Tenancy Act. It may be mentioned here that the Subordinate Judge arrived at this conclusion not without great hesitation. In support of this Rule, the learned advocate for the petitioners has argued that the decision of the. Subordinate Judge is wrong and that he has put a wrong interpretation under Section 170, Bengal Tenancy Act, in holding that that section applies not merely when a tenure or holding is attached in execution of a decree for arrears due thereon, but also when a portion of a tenure is attached in execution of a decree for arrears of the whole tenure. It seems to us that this contention is right. Section 170, Bengal Tenancy Act, runs as follows: Section 278 to 283 (Order 21, Rules 53 - 63) (both inclusive) of the Civil Procedure Code shall not apply to a tenure or holding attached in execution of the decree for arrears due thereon.

(3.) The words "tenure" or holding mean the whole of the tenure or holding and not part of the tenure or holding. The intention of the legistature seams to be that in order to attract the operation of Section 170, Clause (1), not only should the decree be for arrears of rent of the tenure, but that it should be executed as a rent decree, i.e., by the attachment and sale of the entire tenure. It is true that the word "tenure" includes a portion of the tenure, but, in order to understand the meaning of the section, the general scope of the chapter in which it occurs must be taken into consideration Section 158B(1), which is the first section of Ch. 14, Bengal Tenancy Act, says: Where a tenure or holding is sold in execution of a decree for arrears of rent due in respect thereof (omitting immaterial portions) the tenure of holding shall, subject to the provisions of Section 22, pass to the purchaser, if, such decree was obtained by (i) a sole landlord or (ii) the entire body of landlords, or (iii) one or more co- sharer landlords who has, or have, sued for the rent due to all the co-sharers in respect of the entire tenure or holding and made all the remaining co-sharers parties defendant to the suit.