1. This appeal arises out of proceedings in execution of a decree for money.
2. The appellant in execution of a decree for money sought to put up to sale a nontransferable occupancy holding of the defendant, The defendant thereupon appeared and contended that the holding being a non-transferable occupancy holding could not be put up to sale in execution of a money-decree.
3. The Court of first instance relying upon the Special Bench decision in the case of Chandra Benode Eundu v. Ala Bux A.I.R. 1921 Cal. 15 held that it was saleable. On appeal, the learned District Judge was of opinion that he should follow the decision in the case of Bhiram Ali v. Gopi Kanth Shaha (1897) 24 Cal. 355 until it was overruled by this Court, and that the question, whether an ordinary execution creditor can put up a nontransferable occupancy holding to sale in spite of the objections of the raiyat, was not referred to, nor considered by the Special Bench.
2. No doubt, the question which was referred to the Full Bench was - 'Is the sole landlord of a raiyat, competent to-sell in, execution of a money-decree against the raiyat, his occupancy holding, unless the holding is transferable by usage-or custom?' In order to decide that-question however it was necessary to consider the correctness of the decision in Bhiram Ali v. Gopi Kanth (1897) 24 Cal. 355 as regards. voluntary alienations of non-transferable occupancy holdings. It was also necessary to consider the correctness of the decision of the Full Bench in the case of Dayamayi v. Anunda Mohan (1914) 42 Cal. 172 in so far as it adopted the rule laid down in Bhiram Ali's case (1897) 24 Cal. 355, as developed in the later cases, and that was the reason why the Special Bench was constituted. The-Special Bench came to the conclusion that the case of Bhiram Ali v. Gopi Kanth (1897) 24 Cal. 355 was erroneously decided, and' that the decision of the Full Bench in Dayamayi v. Ananda Mohan (1914) 42 Cal. 172 required1 partial modification, namely, that the following should be substituted for the, first proposition enunciated therein regarding the transfer for value of occupancy holdings apart from custom or local usage. 'The transfer of the whole or a part is operative as against the raiyat whether it is made voluntarily or involuntarily.'
3. Now, the Full Bench in the case of Dayamayi v. Ananda Mohan (1914) 42 Cal. 172 laid1 down the proposition that the transfer of the whole or a part is operative against the raiyat-
(a) where it is made voluntarily:
(b) where it is made involuntarily and the raiyat with knowledge fails or omits to have the sale set aside.
4. The result of the modification by the Special Bench was stated to be as follows : When voluntary and involuntary transfers are placed in the same category so far as the raiyat is concerned, no difficulty can arise under Section 60 of the Civil Procedure Code which makes saleable in execution all property belonging to the judgment-debtor over which he has a disposing power, thus prescribing precisely the same test as was formulated by Mr. Justice Jackson in Dwarka Nath Misser v. Hurrish Chunder (1879) 4 Cal. 925, namely, that the measure of liability to involuntary alienation is the power of voluntary alienation.
5. The learned District judge has followed the decision of the Division Bench in Bhiram Ali v. Gopi Kanth (1897) 24 Cal. 355. But as stated above the Special Bench held that it was erroneously decided, and that voluntary and involuntary transfers stand on the same footing so far as the raiyat is concerned.
6. Although therefore the question whether a non-transferable occupancy holding is liable to be sold at an execution sale (notwithstanding objections made by the raiyat) at the instance of an ordinary creditor was not specifically referred to the Special Bench, the principle upon which the question is to be decided, had to be considered and was settled by the Special Bench.
7. I am accordingly of opinion that the order of the lower Appellate Court should be set aside and that of the Court of first instance restored.
8. There will, however, be no order as to costs of this Court or of the lower Appellate Court.
9. I agree with the decision of my learned brother with a certain amount of hesitation. I am somewhat doubtful whether the Special Bench case in Chandra Benode v. Ala Bux A.I.R. 1921 Cal. 15 can be held to have decided anything more than the point which was actually referred to it for decision, namely, is the sole landlord of a raiyat competent to sell in execution of a money-decree against the raiyat, his occupancy holding unless the holding is transferable by usage or custom.
10. The learned Chief Justice in delivering the judgment of the Court at page 223 remarked:
In these circumstances, this Special Bench has been constituted to consider the question referred to, so that we may be free in accordance with the rules of the Court to examine the correctness of the Pull Bench decision in Dayamayi v. Ananda Mohun (1914) 42 Cal. 172, in so far as it affects the present matter.' I think it must be presumed that the Special Bench looked at all the authorities and arguments urged before it from the point of view of the particular case, viz., the case of the sole landlord. In the concluding words of the judgment, the learned Chief Justice states: We hold accordingly that the question before the Special Bench should be answered in the affirmative and that the sole landlord of a raiyat is competent to sell in execution of a money-decree against the raiyat his occupancy holding whether the holding be or be not transferable by custom or local usage, and possibly in that view of what the Special Bench decided, the judgment of the learned District Judge is correct.
11. As, however; the view which has been taken by my learned brother coincides with the view which I have always held myself as to the transferability of holdings, I do not propose to differ from the judgment which has just been delivered by him. I therefore agree with him in decreeing the appeal.