Kulwant Sahay, J.This is an appeal by one of the judgment-debtors, Mohitnarain Jha, against an order of the Subordinate Judge of Darbhanga, dated the 5th of April 1924, rejecting his application of objection to the execution proceeding. The decree under execution was passed on the basis of a mortgage-bond executed by one Shibnath Jha on the 27th of September 1916 in favour of Musammat Debdhira Dai mortgaging certain properties. Three of those properties were held in lease by the present appellant under a thica patta dated the 7th January 1915 executed by Shibnath Jha for a term of seven years from 1322 to 1328 E.S. The patta provided that, after the expriy of the lease in 1328, the lessee was to continue in possession for another term of seven years from 1329 to, 1335 on the same jama and conditions as the original lease; and that the lessor was to execute a fresh patta for the subsequent period. It appears that the mortgagee Debdhira Dai objected to advance the loan and to take the mortgage unless the lessee agreed to give up possession of the leasehold properties after 1328, in case she had to purchase any of those properties either by a private conveyance or in execution of a mortgage-decreefor the satisfaction of the mortgage-debt. The lessor induced the lessee to agree to this term and accordingly on the same day on which the mortgage was executed, namely, the 27th September 1916, the lessee executed an ekrarnama in favour of the mortgagee Musammat Debdhira Dai by which he agreed to waive his thica right and to relinquish possession of the property which the mortgagee might purchase either by private sale or at a sale in execution for payment of the mortgage-debt. The mortgagee instituted a suit to enforce the mortgage and, in this suit, the lessee, who is the present appellant, was made a party and was the defendant No. 8.

2. One of the issues raised in the mortgage suit was issue No. 2 which ran thus; "is the ekrarnama dated the 27th of September 1916 binding on defendant No. 8 and has plaintiff any cause of action against him The learned Subordinate Judge held that according to the terms of the ekrarnama of 1916, the defendant No. 8s lease would be subject to the plaintiffs mortgage if the dues of the plaintiff be not paid by the executant till 1328 fie further held that the defendant was bound to give up possession of the property if the plaintiff purchased any of the mortgaged properties, and the usual mortgage-decree was made in which it was directed that the defendant No. 8 would be bound to give up possession after 1328 if the plaintiff herself purchased any of the properties. Debdhira Dai executed this decree in Execution Case No. 166 of 1922. An application was filed by the present appellant praying that a note be made in the sale proclamation that the mortgaged property shall be sold subject to his lease, and that after the decree-holder purchased the properties, the applicant shall give up possession thereof after 1328.

3. The learned Subordinate Judge refused this application by his order dated the 26th of August 1922. The reason given for refusing this application was that the lease had expired in 1328 and that, therefore, the lessee had no right to continue in possession, the application for making the note in the sale proclamation having been filed in the year 1329, that is after the expiry of the lease. This execution case was, however, ultimately dismissed.

4. The original decree-holder thereafter assignedher decree to the present respondent, Thakan Jha. The present execution which is Execution Case No. 283 of 1923 has been taken out by the assignee and the appellant filed an objection to the execution in which he objected to competence of the assignee to take out execution on the ground that he was merely a farzidar for Kamlnath Jha, judgment-debtor. He also prayed that in case the assignee was held entitled to proceed with the execution, a note might be made in the sale proclamation that the properties advertised for sale shall be sold subject to his prior lease which extends up to 1335. The learned Subordinate Judge has rejected the objection of the appellant on finding that the assignee was not the farzidar for Kamlnath Jha and that the application for making a note in the sale proclamation was barred by res judicata on account of the previous order of the Subordinate Judge in the execution case of Debdhira Dai, dated the 26th of August 1922 mentioned above. He has further held that on a true interpretation of the ekrarnama in favour of the original decree-holder the assignee was entitled to take the benefit thereof, and that the agreement contained in the ekrarnama was not a personal agreement with Debdhira Dai as was contended by appellant. Against this order the appellant has come up on appeal to this Court.

5. The first point taken by the learned Counsel for the appellant is that the assignee was a farzidar for Kamlnath Jha, one of the judgment-debtors and, therefore, he was not entitled to execute the decree. The learned Subordinate Judge has discussed the evidence and has come to the conclusion that it has not been satisfactorily established that the assignee was, farzidar for Kamlnath Jha. On a consideration of the evidence which has been placed before us, I am of opinion that the learned Subordinate Judge was right in his conclusion on this point.

6. The learned Counsel has referred to the evidence on behalf of the assignee and has argued that this evidence is not sufficient to show that he was a real purchaser, but it was for the appellant to prove conclusively that the assignee was a furzidar for the judgment-debtor. The evidence on his behalf is not at all satisfactory to prove the farzi character of the assignment and this ground of the appellant must fail.

7. The second ground taken by the learned Counsel for the appellant is that the Subordinate Judge was wrong in holding that the present application, in so far as it asked a note to be made in the sale proclamation about the properties being subject to the. appellants lease, was barred by res judicata. This contention appears to be sound. The application made by the present appellant in the previous execution case was that his lease might be notified in the sale proclamation. Now this was an application in connection with the drawing up of the sale proclamation as provided by Order XXI, Rule 66 of the C.P.C. The Court executing the decree is required to state certain particulars in the sale proclamation and in order to state those particulars it is sometimes necessary that the Court should hold a summary enquiry. The sale proclamation has to be drawn up under Order XXI, Rule 66 of the Code after notice to the decree-holder and the judgment-debtor and both parties are entitled to apply to the Court asking it to state such particular in the sale proclamation as they think proper. When there is a difference between the decree-holder and the judgment-debtor as regards any of the particulars to be stated in the sale proclamation, the Court has to make a summary enquiry and pass orders after such enquiry. One of the particulars to be stated in the sale proclamation is as regards the encumbrance to which the property sought to be sold is liable. Another particular to be stated therein, as provided by Clause (e), Sub-rule (2) Rule 66, is everything which the Court considers, material for a purchaser to know in order to judge of the nature and value of the property. Under this head the matter, which is usually enquired into by the Court, is as regards the valuation of the property and evidence is generally given under Clause (4) of the rule in order to enable the Court to state those particulars. It has been held that the order of the Court determining any of the particulars to be stated in the sale proclamation under Order XXI, Rule 66 is not a final order and the parties are at liberty to re-open the same question in a subsequent proceeding such as proceedings relating to setting aside the sale under Order XXI, Rule 90 of the C.C.P. The order of the Court in previous execution case of the original decree-holder dated the 26th of August, 1922, was, therefore, not a final order but an interlocutory order after a summary-enquiry and it cannot be held that such an order would operate as res judicata in a subsequent proceeding. Moreover the objection taken on the previous occasion was that the lease has expired in 1328 F.S. and was not subsistent at the time the previous execution was taken out. The objection in the present case is that the present decree-holder, who is the assignee of the decree-holder, is not entitled to the benefit of the ekrarnama which was a personal agreement with the original mortgagee decree-holder. No doubt there was a summary decision in the previous execution case that the lease had expired in 1328, but that was only a reason given for disallowing the prayer of the judgment-debtor to notify the lease in the sale proclamation. It is the final order which operates as a bar in cases where the principle of res judicata is applicable. The reasons given for the final order cannot operate as a bar. In a subsequent proceeding between the heirs of the original lessor and the lessee it has been determined by this Court that the lease did not expire in 1328, but would expire in 1335.--No doubt the present decree-holder or his predecessor has not a party to the proceeding in which that decision was come to but I am of opinion that it is still open to the lessee, the present appellant, to raise that question in the presence of the present decree-holder. I am. therefore, of opinion that the learned Subordinate Judge was wrong in holding that the present application of the appellant was barred by res judicata.

8. It has, however, been contended by the learned Vakil for the respondent that if the order in the previous execution case be held merely to be an order under Order XXI, Rule 66 of the Code and not an order u/s 47, then the present order under appeal, so far as it disallows the appellants prayer to notify the lease in the sale proclamation, is also an order under Order XXI, Rule 66 of the Code and is, therefore, not appealable. This objection of the respondent appears to be sound. The order of the learned Subordinate Judge, in so, far as it refuses to notify the lease in the sale proclamation, is really an order under Order XXI, Rule 66 and is, therefore, not appealable and the present appeal, in so far as this part of the order is concerned, is incompetent.

9. The question, however, as regards the interpretation of the ekrarnama was raised in the Court below and decided by it, it has also been raised before us and has been fully argued on both sides. I think it, therefore, desirable to express my opinion as regards the interpretation thereof. It has been contended on behalf of the appellant that the agreement contained in the ekrarnama was an agreement entered into with the mortgagee Musammat Debdhira Dai personally, and her heirs or representatives are not entitled to take the benefit thereof. Reference is made to the terms of the ekrarnama and to the absence of any expression showing that it was the intention of the parties that their heirs or representatives of the original mortgagee could enforce the, terms of the ekrarnama. I have read the ekrarnama carefully and I have considered the circumstances under which it was executed and I am of opinion that the intention of the parties was that not only the mortgagee Musammat Debdhira Dai personally was to take advantage of the terms thereof, but that her heirs and assignees and legal representatives were also entitled to the benefit thereof. It is to be noted that the terms of this ekrarnama were settled before the mortgage was executed although the actual execution of the ekrarnama took place after the execution of the mortgage-bond. There is a recital in the ekrarnama that the lessor Babu Shibnath Jha was in need of money but the money-lender raised the objection that in the event of non-payment of the debt up till 1328 if she (the mahajan) be under the necessity of getting a kobala executed in respect of the mortgaged property or purchasing at an auction-sale any of the mouzas held in lease by the lessee, she would be put to loss if the lessee continued to hold possession after 1328. The ekrarnama was, therefore, executed at the request of Babu Shibnath Jha for the satisfaction of the mahajan, the moneylender. It was a part of the terms of the mortgage and to my mind it seems clear that the mortgage was executed with the stipulation that in case the mortgagee purchased the property the lessee would give up possession after 1328. I see no reason to hold that this was a personal agreement to enure for the benefit of Musammat Debdhira Dai personally and not of her heirs and representatives. It had the effect of enlarging the security and must be taken to be for the benefit of the mortgagee and her heirs and representatives.

10. Stress is laid by the learned Counsel for the appellant to the expression contained in the ekrarnama to the effect that if the said mahajan herself purchased any of the leasehold properties then the lessee would give up possession after 1328; and it is contended that the expression "herself shows that it was intended that Musammat Debdhira Dai alone could take advantage of this ekrarnama. In my opinion this contention is not sound. What was intended to be expressed was that if the mortgagee purchased then the lessee would give up possession if an outsider or a third person purchased, then the lessee would not give up possession. What was contemplated was the case of the mortgagee becoming the auction-purchaser in contradistinction to a third person purchasing the property.

11. It is next argued that there was no intention that this covenant should run with the land; and it is pointed out that it was stipulated in the ekrarnama that if the mortgagee purchased one, two or all the three mouzas and obtained delivery of possession thereof, the condition as regards relinquishment by the lessee shall hold good in respect of the one, two or three mouzas which the mortgagee might purchase and not of the other mouza or mouzas which she might not purchase. I am unable to see any force in this contention. This term in the ekrarnama is in no way in conflict with the previous terms thereof and does not show that the covenant was not to run with the land. It only emphasises the fact that no one except the mortgagee was to get the benefit of the agreement and that if the mortgagee purchased only one or two out of the three leasehold properties, then she would be entitled to take possession of only that one or those two properties. Eeference has been made by the learned Counsel for the appellant to Section 6 Clause (d) of the Transfer of Property Act which provides that an interest in property restricted in its enjoyment to the owner personally cannot be transferred by him and it is argued that the assignment, in so far as the terms of the ekrarnama are concerned, is bad in law. This would be so only if it be held that the covenant in the ekrarnama was a personal agreement with Musammat Debdhira Dai. Once it is found that it was not a personal covenant, Section 6, Clause (d) of the Transfer of Property Act can have no application to the present case.

12. I am, therefore, of opinion that the learned Subordinate Judge was right in holding that the covenant in the ekrarnama was for the benefit of the decree-holder, whoever he might be, at the time of the execution of the decree. I would, however, dismiss this appeal, in so far as the question of the farzi character of the assignment is concerned against the appellant on the merits, and in so far as the appellants application to notify the lease in the sale proclamation is concerned, on the ground that no appeal lies against this portion of the order. The appellant ought to pay the costs of this appeal.

Mullick, J.

13. I agree.

Ross, J.

14. I agree that the appeal so far as it questions the right of the respondent to execute the decree on the ground, that he is a farzidar of one of the judgment-debtors should be dismissed; and I also agree that no appeal lies against the decision of the Subordinate Judge refusing, to notify the appellants lease in the sale proclamation. The appeal should, therefore, be dismissed with costs.