ALAKHNANDAN PROSAD Vs. MUSAMMAT BIBI SALMA

JUDGEMENT

(1.) The difficulty in this case arises by reason of the fact that the parties seem to have been uncertain as to what the application was that was made to the Munsif. The contention of the petitioner, who was the purchaser in execution which took place in 1924 was that the decision of the learned District Judge was without jurisdiction as the application made to the Munsif was an application purported to be made under Order XXI, Rule 58, Civil Procedure Code and from such an order made under that Rule no appeal lay. But on the other hand it is contended by Mr. Baldeo Sahay on behalf of the opposite party that the matter was treated by the District Judge as an appeal from an order made under Section 47, Civil Procedure Code and, therefore, an appeal lay. It is difficult to decide between these two contentions. But there are certain matters which are quite clear. I find it difficult, to believe that the Munsif treated the matter as an application under Section 47. There is no merit in the placing at the head of an application a particular Order or Rule as I have pointed out on more than one occasion, and it is almost incredible that the Munsif should have treated the application as an application under Section 47 of the Code having regard to the fact that petitioner was a third party so far as the execution which was before him was concerned.

(2.) To make the matter clear two facts had better be stated. The appeal before this Court was by the purchaser in execution of a rent decree for rent in respect of the years 13336 to 1339 that was in 1934. Subsequently in September 1934 the respondents who are represented by Mr. Baldeo Sahay, brought another rent suit in respect of rents for the years 1338 to 1341. So it will be seen that so far as two years (1338 and l339) are concerned, the suits overlap. The holding was put up in execution of that decree and it was during the pendency of the execution that this application was made to the Munsif. Mr. Baldeo Sahay on behalf of the respondents argues that whether there is jurisdiction in the District Judge or not, substantial justice will be done by dismissing the appeal as it is quite clear that for one reason or another the Munsifs order itself was without jurisdiction. If it was or purported to be an application under Section 47, Civil Procedure Code, the Munsif had no jurisdiction for the reason that the present appellant was a third party and, therefore, was not one of those persons who claim to come within the scope of Section 47 of the Code. If on the other hand it was an application or purported to be an application under Order XXI, Rule 58, it is contended that the Judge equally had no jurisdiction as the matter was barred by Section 170 Bihar Tenancy Act. The most recent decision of this Court in Surpat Singh V/s. Shital Singh 17 P.L.T. 385 : 162 Ind. Cas. 805 : A.I.R. 1936 Pat. 480 : 15 Pat. 614 : 2 B.R. 502 : 8 R.P. 575, is a clear authority for the last proposition. But it is contended by Mr. Manoharlal on behalf of the appellant that a previous decision referred to in the judgment in Surpat Singh's case 17 P.L.T. 385 : 162 Ind. Cas. 805 : A.I.R. 1936 Pat. 480 : 15 Pat. 614 : 2 B.R. 502 : 8 R.P. 575, was against the authority of the later decision. It is impossible for the to come to that conclusion, and on a careful reading of both the decisions I am of the opinion that there is no conflict. One observation made by Dhavle, J. who delivered the judgment in the case of Deonandan Prasad V/s. Pirthi Narayan 13 P.L.T. 643 : 142 Ind. Cas. 40 : A.I.R. 1933 Pat 32 : 11 Pat. 790 : Ind. Rul. (1933) Pat. 104 : a case referred by Fazl Ali, J. to a Division Bench Deonandan Prasad V/s. Pirthi Narayan 13 P.L.T. 643 : 142 Ind. Cas. 40 : A.I.R. 1933 Pat 32 : 11 Pat. 790 : Ind. Rul. (1933) Pat. 104 was this : The section (i.e., Section 170) presupposes a rent decree, and it has been repeatedly held that a claim may be made under Order XXI, Rule 58, on the ground that the decree is not a decree of the kind pre- supposed in the section. Claims have, for instance, been allowed where it was shown that the subject-matter of the suit was not a tenure or holding or that the decree was not a rent decree because the landlord had brought his suit in respect of more than one tenure or holding.

(3.) But the learned Judge, from whose judgment I have just read, does clearly state that in the particular circumstances of the case before them an application under Order XXI, Rule 58, was not competent. He says : No such claim was made in the present proceedings; the claimant merely said that he was the recorded raiyat and that the defendants against whom the, landlord had proceeded were his (the claimant s) under-raiyats." Again the learned Judge says : "It has been contended that he was entitled to show that the decree under execution was not a rent decree but it is plain that he was not entitled to show this by establishing that the decree was obtained against a wrong party. That would really be establishing that the decree is a nullity and establishing it under Order XXI, Rule 58, which is excluded by Section 170, Bengal Tenancy Act.