1. This rule was obtained by the decree-holder against the order of the Munsif of Howrah, dated the 15th March 1922, allowing the claim made by the Opposite Party under Order XXI, Rule 58, Civil Procedure Code to the property attached by the decree-holder in execution of a decree for rent which he had obtained against one Abdul Latif for the property in question.
2. The ground upon which the judgment of the learned Munsif is attacked is that it was beyond his jurisdiction to entertain the claim having regard to Section 170 of the Bengal Tenancy Act, as the decree he had obtained was for rent under the Bengal Tenancy Act. The claimant alleged that this property was not a tenure or holding and that the Bengal Tenancy Act was not applicable with reference to a suit for rent brought for the land. The learned Munsif went into evidence for the purpose of ascertaining whether the land was of such a character as to make the provisions of the Bengal Tenancy Act applicable. His finding is to the effect that the provisions of the Bengal Tenancy Act do not apply to the land in question.
3. It is urged on behalf of the petitioner that the decree being on the face of it a decree for rent, as it is so described, the provisions of the Bengal Tenancy Act would be applicable; and it is not open to the Court executing the decree to make any enquiry as to the nature of the land and to decide whether the Bengal Tenancy Act would apply with regard to the decree or not. Reliance is placed upon the Full Bench case of Amrita Lal Bose v. Nemai Chand Mukhopadhaya 28 C. 382; 5 C.W.N. 474 (F.B.) in support of the contention of the petitioner. In that case, however, the question referred to the Full Bench was whether Section 170 of the Bengal Tenancy Act bars the claim to a tenure or holding attached in execution of a decree for arrears due thereon in all cases, or whether the operation is confined to claims to the tenure or holding and does not extend to claims based on the ground that the property claimed does not form part of the tenure or holding attached. The majority of the Court held that the section bars a claim in all cases where the tenure or holding is attached in execution of a decree. It was not decided, nor could it be decided, having regard to the reference, whether any claim can be entertained where the property attached is not a tenure or holding although the decree is in form a decree for rent under the Bengal Tenancy Act. On the other hand, it has been held in the case of Sarba Sundari Dasi v. Harendra Lal Roy Chowdhury 7 Ind. Cas. 490 : 12 C.L.J. 549 that when the jurisdiction of a Court is sought to be excluded on the ground that the property attached is of a particular description, it is open to the Court to ascertain the true nature of the property. Reference may also be made to the case of Bipra Das Dey v. Raja Ram Bandopadhaya 8 Ind. Cas. 306 : 13 C.W.N. 650 : 86 C. 766 for the purpose of showing that the Court executing the decree can go into the question whether the decree was a decree under the provisions of the Bengal Tenancy Act so as to bring into play the operation of Section 170 of the Act and prevent a claim being preferred to the property attached. In that case also the decree was in form a decree for rent which was obtained for two holdings and it was held that a claim might be entertained with regard to the property attached in execution of the decree. It, therefore, appears to us that the learned Munsif did not act without jurisdiction in entertaining the claim.
4. The Rule is, therefore, discharged with costs, hearing-fee, five gold mohurs. Richardson, J.
5. I agree.