1. This is a rule calling upon the opposite party to show cause why the order of the Munsif of Bankura, dated the 25th January 1909, should not be set aside.
2. It appears that the opposite party who were the plaintiffs in the Court below brought a suit along with the pro forma defendants, who were their co-sharers, for arrears of rent due on two holdings. These pro forma defendants, upon their refusing to join the other plaintiffs in the suit, were, subsequently, transposed to the category of defendants. The decree which the plaintiffs obtained was one for a share of the rent due to them alone. In the execution of that decree, the two holdings were attached. Thereupon, the petitioner, preferred a claim under Section 278, C.P.C. The opposite party objected that the claim was barred under Section 170 of the Bengal Tenancy Act. The Court below has given effect to that objection.
3. I am of opinion that the order of the Munsif cannot be sustained.
4. Section l70 is one of the sections in Chapter XIV of the Bengal Tenancy Act and it cannot, therefore, apply to any case in which the decree is not of such a nature as is contemplated in that Chapter. The decree in this case, as I have already said, was for arrears of rent due in respect of two holdings. Therefore, when either of two holdings was attached, it was attached in execution of a decree passed not only for arrears due on one of the two holding’s but also for arrears due on the other holding. It follows that Section 170 of the Bengal Tenancy Act cannot apply to this case.
5. This view gains support from the ratio decidendi of the judgments in the case of Hridoy Nath Das Chowdhury v. Krishna Prasad Sircar 11 C.W.N. 497 : 34 C. 298 : 6 C.L.J. 153 and in that of Baikunta Nath Roy v. Thakur Debendro Nath Sahi 11 C.W.N. 676.
6. The order of the Court below is, there fore, set aside and this Rule is made absolute with costs-two gold mohurs.
7. I agree.