Authored By : S.C. Ghose, Banerjee

S.C. Ghose and Banerjee, JJ.

1. This is an appeal which arises out of two applications,one made by the judgment-creditors, who are also the auction-purchasers at asale in execution of the decree under Section 318 of the Code of CivilProcedure, for an order for delivery of possession of the property purchased bythem, and the other by the judgment-debtors under Section 244 of the Code,objecting to the propriety of the sale, and asking, in effect, that the sale beset aside.

2. The decree in question was obtained on the 24th April1894. It purports to be a decree for rent, and it was made in a suit institutedby certain fractional shareholders of a zamindari. Having obtained this decreein respect of their share of the rent they brought the property in theoccupation of the defendants, the judgment-debtors, and in respect of which therent was claimed, to sale on the 5th of June 1896, and purchased it themselves.The sale seems to have been confirmed on the 14th July 1896. They then appliedfor an order under Section 318 of the Code for delivery of possession.Thereupon, as already indicated, the judgment-debtors came in, in the firstplace, opposing the application of the decree-holder under Section 318, andsecondly insisting that the sale itself was bad and should, therefore, be setaside.

3. It is unnecessary to refer to the earlier stages of theproceedings in the Courts below in connection with this matter." It issufficient to say that the last order that was made by the Court of FirstInstance on the 27th May 1898 was to the effect that the sale being a sale of akursa holding was not a good sale, for the raiyat had no disposing power in it,and accordingly set aside the sale, though the actual words used in thejudgment were to the effect that the property was not saleable, but which, weunderstand, really amounted to an order setting aside the sale.

4. On appeal against this order by the purchasers, theSubordinate Judge has held, having regard to the provisions of Sections 22, 65and 73 of the Bengal Tenancy Act, that, in execution of a decree for rent, theoccupancy right possessed by the defendants, judgment-debtors, was capable ofbeing sold, though the decree itself was obtained by certain co-sharers in thezamindari. He has, however, observed that the other co-sharers might refuse torecognise the purchase on the part of the decree-holders; but that so far asthe judgment-debtors are concerned, it is not open to them to contest the rightof the decree-holders to bring to sale the holding in question. Accordingly hehas ordered that the sale be confirmed, and that the objection of thejudgment-debtors be disallowed.

5. It seems to us that the initial mistake that the learnedSubordinate Judge has fallen into is this: He has regarded the decree inexecution of which the property was sold as a decree under the Bengal TenancyAct. The decree no doubt was a decree for rent, but it was obtained by some ofthe co-sharers in the zamindari, and not by the whole body of zemindars; andtherefore it could not be regarded as a decree under the Bengal Tenancy Act(See in this connection Section 188 of the Bengal Tenancy Act and the cases ofPrem Chand Nuskur v. Noolcskoda Debt I.L.R (1887) 14 Cal., 201 [LQ/CalHC/1887/2] , and JugobundhuPattuck v. Jadu Ghose Alkushi I.L.R. (1887) 15 Cal., 47 [LQ/CalHC/1887/59] .

6. If it was not a decree under the Bengal Tenancy Act, itis obvious thai the proceedings in execution thereof could only be inaccordance with the provisions of the Code of Civil Procedure, and not withthose of the Bengal Tenancy Act. The decree may well be regarded as a decreefor money, in execution of which the property or rather the right, title andinterest of the raiyat defendant in it were sold, if such right, title andinterest in the holding were saleable under the law. The question that here arisesis whether, having regard to the provisions of Section 266 of the Code of CivilProcedure, the holding was saleable; whether the raiyat had a disposing powerin it. If he had not, it is obvious that it could not be sold in execution ofthe decree obtained by certain fractional shareholders in the zamindari.

7. The Court of First Instance, in the judgment to which wehave already adverted, held that the holding was not saleable by custom orotherwise, but the Subordinate Judge has rather assumed than found that it wassaleable. It has, however, been contended before us by the learned Vakil forthe respondent that the sale having already been confirmed the question is nolonger an open question between the parties, but it seems to us that theconfirmation of sale is no bar to the application that has been made by thejudgment-debtors to have it declared that in execution of the decree obtainedby certain co-sharers in the zamindari the holding could not be sold; that hehad no disposing power in it; and that therefore the sale has passed nointerest whatever to the purchaser. The enquiry which should have to be madeupon an application like this would be an enquiry under the provisions ofSection 244 of the Code of Civil Procedure, uncontrolled by the provisions ofSections 311 and 312, which deal with irregularities in the conduct of sale andthe confirmation of sale where such irregularities are not made out. In thecase of Rasti Ram v. Fattu : I.L.R. (1886) 8 All., 146,decided by a full Bench of the Allahabad High Court, where a judgment-debtor,whose occupancy tenure had been sold in execution of a decree for money,brought a suit against the purchaser for recovery of the property, on theground that the sale of the occupancy right in execution of the decree wasillegal and void, being in contravention of the provision of the Rent Act whichobtains in the North-West Provinces, it was held that the question involved inthe suit was one of the nature referred to in Section 244(c) of the Code ofCivil Procedure as determinable only by order of the Court executing thedecree, and that the suit was, therefore, not maintainable. In delivering thejudgment of the Court Mr. Justice Oldfield made the following observations,which are pertinent to the present enquiry: "In the case before us, thejudgment-debtor has sued the auction-purchaser to recover the property sold inexecution of the decree, on the ground that the property, which is a tenantsright in land, is not by law saleable in execution of decree. This question isone which arose between the plaintiff judgment-debtor and the decree-holder,who is also the purchaser, and was determined against the former by the Courtwhich executed the decree prior to the sale, and it is a question which must beconsidered to relate to the execution, discharge, or satisfaction of thedecree. It is in effect whether any property was liable to attachment and saleto satisfy the decree. Certain things are by Section 266 of the Code of CivilProcedure not liable to attachment and sale. The question regarding liabilityto attachment and sale arising out of the provisions of Section 266 of the Codeof Civil Procedure would clearly be questions within the meaning of Section 244of the Code of Civil Procedure. The question of the liability of the property,the subject of this suit, to attachment and sale, arises out of a provision inthe Rent Act; but equally with questions under Section 266 of the Code of CivilProcedure, it is one which falls within the meaning of Section 244 of the Codeof Civil Procedure." We concur in these observations.

8. But then a difficulty arises in this wise: An order forsale was made, and in furtherance of that order, the property was sold,whatever may be the effect of that sale. If the judgment-debtors were partiesto that order, or were aware of it, and did not appeal against it, they are nowprecluded from questioning the propriety of that order, and consequently of thesale that has taken place under that order. They say, however, in theirapplication, to which we have already referred, that they were not aware of theproceedings in attachment of this property, nor of the proceedings inconnection with the sale thereof, clearly indicating that they were not partiesto the order for sale; and they say that this was owing to the fraud on thepart of the decree-holders. The Courts below have not gone into this question.In the view we take of this case it would be necessary to enquire into thematter and determine whether the judgment-debtors were parties to the order forsale or were aware of it. If this question be answered in the affirmative, thenwe are clearly of opinion that it is not open to them now to question thepropriety of the sale that has already taken place.

9. The learned Vakil for the respondent has, however, arguedthat, assuming that, by custom or usage, the holding in question is notsaleable, yet the interest of the judgment-debtors, whatever that might beworth, is saleable, and that it is certainly saleable at the instance of anexecution-creditor, the contention being that the sale would be a sale only ofthe right, title and interest of the judgment-debtors in the property inquestion. In the case of Bhiram Ali Shaik Shikdar v. Gopi Kanth Shaha I. L.R.(1897) 24 Cal., 355, decided by Mr. Justice Banerjee and Mr. Justice Rampini,where a question somewhat similar to the one now before us was raised anddiscussed, the following observations, occurring in the judgment, are pertinentto the question now before us. After referring to the provisions of some of thesections of the Bengal Tenancy Act, which have been quoted in the judgment ofthe Court of Appeal below in this case, those learned Judges said as follows:"That no doubt makes on occupancy holding saleable at the instance of thelandlord in execution of a decree for rent; but though that is so, it does notfollow from that an occupancy holding is saleable at the instance of theoccupancy raiyat or of any creditor of his other than his landlord seeking toobtain satisfaction of his decree for arrears of rent" (the word"landlord" here used we take to refer to the whole body oflandlords)" such an inference is, in our opinion, clearly negatived by theabsence in chapter V of any provision relating to the transferability ofoccupancy holdings. Nor does Section 73 warrant any contrary conclusion, seeingthat there are cases in which occupancy raiyats may transfer their holdingswithout the consent of the landlord; we mean cases in which such holdings aretransferable by custom or local usage" and so on.

10. We think, having regard to the observations we have justreferred to, that if the holding was not saleable according to custom or usage,it was not open to the creditors (for we cannot regard the decree-holders in thiscase in any other light than mere creditors) to bring to sale the interest ofthe occupancy raiyat in this holding, that it is open to the latter, havingregard to the provisions of Section 266 of the Code of Civil Procedure, toraise the objection which they did raise in the Court below, namely, that theholding was not a saleable property.

11. We observe that the Court of Appeal below has come to nodecision or finding upon the question, whether the holding was saleable eitheraccording to custom or usage. When this case is taken up again under the orderof remand that we propose to make, this matter will also have to be gone into.

12. Upon these grounds we think that the order of the Courtbelow should be set aside and the case sent back to that Court for retrial withreference to the foregoing observations. Costs will abide the result.

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Durga Charan Mandal and Ors. vs. Kali Prasanna Sarkar andOrs. (19.04.1899 - CALHC)