It has been satisfactorily proved by the evidence of the claimants and their witnesses that the claimants are in possession of the disputed lauds appertaining to their jumma of Rs. 9-12 in the name of hiss father Ham Chand Hazra and that there is no jumma in the decree-holder's sherintha in the name of Srikant Roy and that the false and fictitious jumma has been set up to injure the Plaintiff and that Srikant Roy was never in possession of the lands. The evidence on other side is altogether unsatisfactory and one of the witnesses could not deny that the claimant Makhun Hazra has his house in a part of this land although he said it was made a year ago which was at all events before the attachment. It was however urged that this claim cannot be gone into but the late Chief Justice has ruled otherwise and the case is quoted by Mr. Justice Rainpini in his note under sec. 170 relating to the matter in his last edition of the Bengal Tenancy Act. In this case the claimant does not claim any right to the holding such as is attached but claims these lands to be his own and adversely to the holding, in fact he alleges and has proved that the lands never appertained to any holding in the name of Srikant Roy and were never in the possession of Srikant and that the holding attached is fictitious. The claim is allowed ami the attached property is released from attachment. The claimants to get their costs and pleader's fees Rs. 4.
The decree-holder made an application under sec. 622, C.P.C, and obtained the present Rule. It was contended by the Petitioner that the Court had no jurisdiction to entertain the claim as secs. 278-283, C.P.C, do not apply to proceedings in execution of rent-decrees under the Bengal Tenancy Act.
Babu Harendra Narayan Mitter for Muuhrie Syed Shanisul Huda for the Petitioner.
Babu Digambar Chatterjee and Dr. Asutosh Mookerjee for the Opposite Party.
The Judgment of the Court was as follows:—
This is a rule calling upon the opposite party to show cause why the order complained of by the petitioner should not be set aside.
The order complained of is one apparently under sec. 278 of the Code of Civil Procedure. In a case in execution of a rent decree execution had been taken out against a tenure in satisfaction of a decree for arrears of rent, and the tenure was put up for sale. Then the opposite party applied under sec. 278, C.P.C, and averred that the tenure put up for sale did not belong to the ostensible judgment-debtor, but to him.
The Munsif enquired into this objection and proceeded to give effect to it. He held, as a matter of fact, that the holding put up to sale was not the holding of the ostensible judgment-debtor, Srikant Roy, but was the holding of the objector; and he accordingly allowed the claim and directed that the attached property should be released from attachment.
Now this rule has been obtained on the ground that the proceedings of the Munsif were not warranted by law, because, under sec. 170 of the Bengal Tenancy Act, the provisions of secs. 278 to 283, C.P.C, are excluded and expressly declared not to be applicable to a tenure or holding attached in execution of a decree for arrears of rent due thereon.
The learned pleader for the opposite party contends on the authority of the unreported case of Jagabundhu Chattopadhya v. Deenu Pal (decided by Petheraro, C.J, and Cunningham, J., on the 7th January 1887) that the operation of sec. 170 of the Bengal Tenancy Act “is confined to claims to the tenure, and not to claims which are adverse to the tenure, and in which the nature of the question to be tried is whether the property claimed is part of the tenure or not.”
He says that is exactly the nature of the claim which his client set up in the Court below. It was a claim adverse to the tenure and did not come within the purview of sec. 170 of the Bengal Tenancy Act.
We think, however, that this contention has no force; whether the claim of the opposite party in this case was a claim to the tenure or a claim adverse to the tenure, it was a claim coming within sec. 278, C.P.C, and the Munsif was consequently not justified in enquiring into it. It is true that the view which the learned pleader supports in this case is warranted by the decision in the above cited case of Jagabundhu Chattopadhya v. Deenu Pal. But we are unable to agree with the ruling in that case; and as that ruling is not reported, we are not bound, under sec. 3 of Act XVIII of 1875, to follow it and to treat it as an authority binding upon us. Had we felt bound to treat it as such we would have referred the question to a Full Bench, but as we are not bound to follow that ruling, seeing that it is unreported, we do not think it necessary to adopt this course.
We therefore make this Rule absolute and set aside the order of the Munsif complained of. The execution will now proceed.
The costs of the rule are assessed at one gold mohur.
Ride absolute.