JUDGMENT
Rai, J.
1. This revision petition has been filed by the decree-holders against the order dated 26-4-1949, passed by the Munsif, and Court, Gaya, whereby he has held that Prasad Mahton, opposite party 1, is entitled to press his petition under Order 21, Rule 58, Civil P. C., in the execution proceeding started by the petitioners.
2. The petitioners who are 16 annas landlords claim to have obtained on 8-12-1947, a decree for rent against Sohrai Gope, the tenant recorded in their serishta in respect of a holding having an area of 10.29 acres. They executed the decree in Ex. case No. 496 of 1948. After service of writ of attachment and sale proclamation Prasad Mahton, oppceite party 1, filed an application under Order 31, Rule 68, Civil P C., for release of 4.93 acrea out of the holding in question. He claimed to have purchased the area by a registered sale.deed dated 9-8-1947. His case was that as he had not been impleaded in the rent suit, the decree for rent passed in favour of the landlords would have the effect of a “money decree,” and hence he was entitled to have his claim adjudicated under Order 21, Rule 58, Civil P. C., and get a release of the area purchased by him from attachment and sale. According to him, Section 170, Bihar Tenancy Act was no bar to such an investigation. The Executing Court has accepted his contention. Hence, the revision petition to this Court by the decree-holders.
3. Mr. Lakshman Saran Sinha, the learned counsel for the petitioners, urged that Section 170, Bihar Tenancy Act is a complete bar to the investigation of the claim set up by opposite party 1. He relied on several decisions of this Court in support of bis contention, namely, the cases of Deonandan Prasad v. Pirthi Narayan, 11 Pat. 790: (A.i.r. (20) 1933 Pat. 32); Surpat Singh v. Shital Singh, 15 pat. 614: (A. I. R. (23) 1936 pat. 480); Chhuter Kumari Devi v. Bhagawat Prasad, 15 Pat. 812 : (A. I. R. (24) 1937 Pat. 278) and Alakhnandan Prosad v. Mt. Bibi Salma, A.I.R. (24) 1937 Pat. 341 : (169 I. C. 729). He referred us to the proviaiona of Section 170, Clause (1), Bihar Tenancy Act which runs as follows:
“Rules 58 to 63 (both inclusive) and 89of Order XXI of the Code of Civil Procedure, 1908, shall not apply to a tenure or holding or portion of a holding attached in execution of a decree for arrears due in respect of the tenure or holding.”
According to him, as the decree obtained by the landlords was in respect of the entire holding, Section 170, Clause (1) was a bar to any investigation under Order 21, Rule 58, Civil P. C.
4. This matter has been considered in the various decisions cited on behalf of the petitioners. In the case of Deonandan Prasad v. Pirthi Narayant 11 pat. 790 : (A. I. R. (20) 1933 Pat. 32) a Division Bench of this Court followed the decision of a Full Bench of the Calcutta High Court reported in Amrita Lal v. Nemai Chand, 28 Cal, 382: (5 C. W. N. 474 F.B.). In the Full Bench case of the Calcutta High Court Banerjee J. who gave the dissenting judgment, held the same view as the majority Judges so far as the question for consideration in the present case was concerned. Banerjee J. in the said Full Bench case held:
“Where the claim is of this nature, namely, that the claimant admits that the tenure or holding is held under the decree-holder, that arrears of rent are due thereon, and that the decree is in respect of such arrears, but contends that the decree ought not to be allowed to be executed by the attachment and sale of the tenure, because it was obtained against the wrong person, that the claimant was the person entitled to the tenure or holding, and that, unless and until the landlord sues him and obtains a decree against him, the tenure or holding cnnnot be sold. Where that is the nature of the claim Section 170 will bar the olaim upon the claimant’s own case.”
The learned Judges who decided the case reported in Deonandan Prasad v. Pirthi Narayan, 11 pat. 790: (A. I. R. (20) 1933 Pat. 32) reviewing the law on the subject held as follows:
“And as regards this class of cases all the learned Judges of the Full Bench were agreed that Section 170, Bengal Tenancy Act barred a claim under Section 278 (now Order 21, Rule 58), Civil P. C. In this class of cases the tenure or holding will pass in execution if the landlord proceeds under the special provisions of the Bengal Tenancy Act, even though some of the persons interested in the tenure or holding may not have been : impleaded as defendants; and it was recognised on all hands that the Act clearly excluded the operation in such cases of the general law as regards the putting forward of claims to attached properties by third parties in execution proceedings.”
The decision in the case of Surpat Singh v. Shital Singh, 16 Pat. 614 : (A. I. R. (23) 1936 pat. 480), also held the same view. is that case Agarwala J. while following the Full Bench case reported in Amrita Lal v. Nemai Chand, 28 Cal. 382 : (5 C. W. N. 474 F. B.), and other; cases of this Court including the cases of Dwarka Singh v. Nema Singh, 10 P. L. T. 118 : (A. I. R. (16) 1929 Pat. 195) and Deonandan Prasad v. Pirthi Narayan, 11 Pat. 790 : (A. I. R. (20) 1933 Pat. 32) held that the claim under Order 21, Rule 58, Civil P. C. was barred. His Lordship in that judgment considered the very question which is under consideration in the present case, namely, whether the provisions of Section 170, Bibar Tenancy Act would bar an investigation under Order 21, Rule 58 in a case where the decree obtained by the landlords is not generally known as s “rent decree” but a “money decree ” The decisions in the other cases of the Patna High Court as referred to by Mr. Lakshman Saran Sinha also lay down the same principle.
5. Mr. Hareahwar Prasad Sinha, the learned counsel for the opposite party, has, however, contended that Rule 170, Bihar Tenancy Act was not a bar to the investigation of the claim of his client. He contended that his client having purchased a portion of the original holding before the suit for rent was instituted would be deemed to have been recognized as a raiyat and as he was not impleaded in the suit for rent, the decree obtained therein would have the effect of a “money decree.” He relied upon the case of Maharaj Singh v. Anath Nath Bose, A. I. R. (33) 1946 Pat. 292 : (26 Pat. 199) in support of his contention. In this case the facts were different, and as I read the decision, it is not against the view taken by the decisions of, this Court relied upon by learned counsel for the petitioners. In this case what bad happened was that a co-sharer landlord had filed a suit for rent in respect of a portion of a holding which had fallen to his share by a civil court partition. It was held in that case that the holding would not be deemed to have been split up so ‘ar as the raiyat was concerned who was not a party to the civil court partition. The decree, in that view of the matter, was in law for arrears of rent of a portion of the original holding, and as such, it was held in that case that Section 170, Bihar Tenancy Aet was no bar to an investigation of a claim nnder Order 21, Rule 58, Civil P. C. daring the execution of such a decree. Meredith J. (as he then was who delivered the judgment after considering the various decisions including those of the Fait Bench case reported in Amrita Lal v. Nemai Chattel, 28 Cal. 382 : (S C. W. N. 474 F. B.), Deonandan Prasad v. Pirthi Narayan, 11 Pat. 790 : (A. i. R. (20) 1933 Pat. 32), Surpat Singh v. Shital Singh, 15 Pat. 614 : (A. I. R. (23) 1936 Pat. 480) and Chhater Kumari Devi v. Bhagwati Prasad, 15 pat 812 ; (A. i. R. (24) 1937 Pat. 278) held as follows:
“Mr. Lal has cited a number of other case, but so
ar as I can are the proposition laid down In the case
just cited have never been dissented from in any case
in this Court. The distinction made is a clear one, and
in fact, so far as I can see there is no conflict of opinion on the point, and so far as this Court is concerned, the matter settled, Surpat Singh v. Shital Singh, 15
Pat. 614 : (A. I. R. (23) 1936 Pat. 480) is another case
on the point. There prior purchases from the tenants
applied under Order 21, Rule 58, for release of the holding,
and contended that the landlord’s decree was only a
money decree. The Munsif upheld the contention. It
was held is revision that Section 170, Bihar Tenancy Act,
was a bar to the application of Order 21, Rule 58, but their
Lordships explained that the reason why it was a bar
was because the tenants did not deny that the decree-holder was the landlord, or that there were actually arrears due for the holding for the years in suit in respect of which the rent decree was passed, but they attacked the decree on the ground that it had been wrongly obtained against the original tenant who had sold the holding to the claimants, they did not dissent from the decision in Deonandan Prasad v. Pirthi Narayan, 11 Pat. 790 : (A. I.R. (20) 1933 Pat. 32) but rather referred to it with approval.”
Thus, this judgment does not in any way differ from the decisions relied upon by the learned counsel for the petitioners. In fact, the facts and circumstances in the case of Maharaj Singh v. Anath Nath Bose, A. I. R. (33) 1946 Pat. 292 : (25 pat. 199) as mentioned above were different, and the decision in that case was, in fact, arrived at on the finding that, in the eye of law, the decree would be deemed to be a decree in respect of a portion of the holding.
6. In the present case also the objector does not deny that all the landlords had been impleaded in the suit for rent. He also does not deny that the decree for rent was in respect of the whole holding. In this view of the matter, in my judgment, the view taken by the Court below was not correct. It hag erred materially in the exercise of its jurisdiction by assuming jurisdiction to investigate a claim cage under Order 21, Rule 58, which is forbidden by the provisions of Section 170, Bihar Tenancy Act.
7. The order of the Court below is, therefore, set aside and the rule made absolute. The petitioners are entitled to tbeir costs of this Court. Hearing fee one gold mohur.
8. Sinha J.–I agree.