1. This Appeal is directed against an order for execution of a decree for rent, obtained by the Respondent on the 13th July 1907 under the Chota Nagpore Landlord and Tenant Procedure Act of 1899. On the 14th April 1910, the decree-holder applied for execution of the decree. On the nth July following, two persons, not parties to the decree, preferred claims under sec. 211 of the Chota Nagpore Tenancy Act of 1908 which had come into force after the date of the decree and before the date of the application for execution. On the 16th September 1910, the claim was allowed in respect of one of these claimants who established his interest to the extent of a fourth share in the defaulting tenure. It was found in substance that the decree for rent had been obtained against persons who did not represent the entire tenure and that the holder of a fourth share had been left out of the suit, although his name had been registered in the books of the landlord. As soon as the claim was allowed, the decree-holder prayed that the decree might be executed against the remaining three-fourths share of the tenure. The owners of this three-fourths share thereupon objected that the sale could not take place under sec. 208 of the Chota Nagpore Tenancy Act of 1908, and, that, in any view, they could be held liable only in respect of a proportionate share of the rent due. This objection has been overruled by the Courts below and sale directed of a three-fourths share of the tenure. In our opinion, this order cannot be supported. Sec. 208 of the Chota Nagpore Tenancy Act of 1908 provides that when a decree passed by a Deputy Commissioner is for arrears of rent due in respect of a tenure, the decree-holder may apply for the sale of such tenure and the tenure may thereupon be brought to sale in execution of the decree according to the provisions for the sale of under-tenures under the Bengal Rent Recovery Act of 1865, all the provisions whereof, except secs. 12, 13, 14 and 15, shall, as far as may be, apply to such sale. It cannot be seriously contended that this sub-section contemplates the sale of a share of a tenure. In fact, the provisions of the Bengal Rent Recovery Act of 1865 clearly contemplate the sale of an entire tenure. It has been argued however on behalf of the decree-holder Respondent upon the authority of the decision in Madan Mohan Nath Sahi v. Protap Uday Nath Sahi 16 C. W. N. 1024 (1912), that it is competent to the Court to execute a decree for rent against a share of a tenure. In our opinion, the case mentioned is clearly distinguishable and is of no assistance to the Respondent. In that case, the Commissioner had prohibited the sale of a portion of a tenure under cl. (a) of the proviso to sub-sec. (1) of sec. 208. Under these circumstances, it was held that the remainder of the tenure, the sale whereof had not been prohibited by the Commissioner, might be sold under sec. 208, read with the provisions of the Bengal Rent Recovery Act of 1865 as if it were a tenure by itself and that the purchaser at such sale would acquire the same status as the purchaser of an entire tenure. That case obviously bears no analogy to the one before us. Here the decree-holder originally sought to bring to sale the entire tenure in accordance with sub-sec. (1) of sec. 208. He now finds himself unable to sell the entire tenure, because an order adverse to him has been made in favour of a claimant under sub-sec. (1) of sec. 211. It is, therefore, impossible for us to hold that an application for sale of the remainder of the tenure stands on the same footing as an application for sale of a part of a tenure the remainder whereof has been exempted from sale by an order of the Commissioner under cl. (4) of the proviso to sub-sec. (1) of sec. 208. This view is confirmed by an examination of the provisions of sub-sec. (1) of section 211. That subsection provides that if, before the day fixed for the, sale of a tenure in pursuance of sec. 208, a third party appears before the Deputy Commissioner and alleges that he and not the person against whom the decree has been obtained was in lawful possession of or had some interest in the tenure when the decree was obtained, the Deputy Commissioner shall examine such party according to the law for the time being in force relating to the examination of witnesses ; and if he sees sufficient reason for so doing, and if such party deposits in Court, or gives security for, the amount of the decree, the Deputy Commissioner shall stay the sale and shall, after taking evidence, adjudicate upon the claim, provided that no transfer of a tenure shall be recognised unless it has been registered in the office of the landlord or sufficient cause for non-registration is shown to the satisfaction of the Deputy Commissioner. It is worthy of note that this sub-section, though based upon sec. 125 of the Chota Nogpore Landlord and Tenant Procedure Act of 1897 which substantially reproduced the terms of sec. 106 of the Bengal Rent Recovery Act of 1859 differs from the corresponding provisions of the earlier statutes in one important respect. Under the statutes of 1859 and 1897, a claim could be preferred only by a person who asserted that he was the owner of the entire tenure sought to be brought to sale. Under sec. 211 of the statute of 1908 the claimant could allege that he was in lawful possession of or had some interest in the tenure, when the decree was obtained. Consequently it is open to a person who has some interest only in the tenure successfully to assert his claim under sec. 211. But although a claim by such a person is admissible under the section, yet he has to furnish security for the entire amount of the decree, and, if his claim is established, what is stayed is the sale, that is, the entire sale and not merely the sale in respect of the interest asserted by him. The inference may legitimately be drawn that the Legislature intended that if the claim has been allowed in respect of some interest in the tenure under sub-sec. (1) of sec. 211, the decree should not be executed as a decree for rent under sec. 208. This view is in accordance with the well-established principle that a decree obtained against some only of the registered tenants cannot be executed as a decree for rent. Anund Kumar v. Hari Das I. L. R. 27 Cal. 543 (1900) and Giris Chandra Guha v. Khagendra Nath Chatterjee 13 C. L. J. 613 (1911). It follows therefore that the decree-holder is not entitled to execute the decree against a three-fourths share of the tenure under the provisions of the Chota Nagpore Tenancy Act of 1908. It is open to him, however, to treat the decree as a decree for money against the judgment-debtor and to exe-cute it in the ordinary Civil Court. The contention of the judgment-debtors that they cannot be held liable for the entire rent cannot be entertained at this stage. The defence might have been available to them if it had been urged in the course of the suit for recovery of arrears of rent ; they cannot now be permitted to get behind the decree ; nor is it open to them to invite the Court to break up the decree. Consequently the decree must be executed, as it sands, against the judgment-debtors, if an appropriate application is presented to a Civil Court competent to execute such a decree.
2. The result is that this Appeal is allowed, and the order of the Court below discharged. The application for execution will be forthwith returned to the Respondent decree-holder with an endorsement by the Deputy Registrar that it has been so returned for presentation to the proper Court. When it is so presented, whether any question of limitation will arise or not must depend upon the applicability of the terms of sec. 14 of the Indian Limitation Act. That, however, will be a question for the execution Court to determine, if the objection of limitation is urged there. The Appellants are entitled to their costs throughout these proceedings. We assess the hearing-fee in this Court at two gold mohurs.
