Sec.170, Bihar Tenancy Act bars a claim under Order 21, Rule 58, Civil P. C., where the decree for rent is against the tenant and the purchaser of a portion of the holding before the suit for rent was instituted was not impleaded in the suit.

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, Sec.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 Sec.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/s. Pirthi Narayan, 11 Pat. 790: (A.i.r. (20) 1933 Pat. 32); Surpat Singh V/s. Shital Singh, 15 pat. 614: (A. I. R. (23) 1936 pat. 480); Chhuter Kumari Devi V/s. Bhagawat Prasad, 15 Pat. 812 : (A. I. R. (24) 1937 Pat. 278) and Alakhnandan Prosad V/s. Mt. Bibi Salma, A.I.R. (24) 1937 Pat. 341 : (169 I. C. 729). He referred us to the proviaiona of Sec.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, Sec.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/s. 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/s. 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 Sec.170 will bar the olaim upon the claimants own case."

The learned Judges who decided the case reported in Deonandan Prasad V/s. Pirthi Narayan, 11 pat. 790: (A. I. R. (20) 1933 Pat. 32) reviewing the law on th