1. This rule arises out of a claim case which has been dismissed by the learned Subordinate Judge, Howrah. According to the petitioners, there is a putni tenure which had been sub-divided amongst a number of tenure-holders of whom the1 petitioners held a 4 anna share. The opposite party No. 7, brought a suit for rent in respect of the entire tenure against the recorded tenants, Sashi Bhusan Das and Bindu Bashini Dasi, and obtained a decree ex parte. The said decree was, in due course, put into execution and the putni tenure was attached and advertised for sale. Thereupon, the petitioners filed a claim under Order 21, Rule 58, Civil P.C., stating that they have a 4 anna share in the attached putni mehal, that they had been paying rent to their landlord, and as they had not been made parties to the original suit, the decree passed in that suit was not a rent decree. The learned Subordinate Judge held that under Section 170, Bengal Tenancy Act, the petitioners' claim case was barred. Against that order, the present rule has been obtained.
2. It is contended that the learned Subordinate Judge is wrong in refusing to go into the question as to whether the petitioners had acquired their alleged 4 annas share in the property. It is not however disputed by the petitioners that they are not recorded tenants nor that the decree has been passed against persons who are the recorded tenants. Therefore under Section 146-A, Ben. Ten. Act, prima facie the decree as it stands is valid against all the co-tenants including the present petitioners. The learned Subordinate Judge has also pointed out that under Section 146-B, the petitioners might possibly have applied for being made parties but they did not do so, and there is no allegation in the petition to the effect that the petitioners had no knowledge of the decree. In the circumstances, it seems to us that the learned Subordinate Judge was right in holding that it is not open to the petitioners to put in a claim like the one in question. It is also pointed out that they have their remedy, if any, by way of suit. This is sufficient to dispose of the rule against the petitioners. It is not necessary to go into the larger question which has been raised, namely, whether the petitioners are entitled to have it decided whether the decree is or is not a rent decree. The rule is discharged with costs, hearing fee one gold mohur to be divided equally between the two sets of opposite parties.