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 a sale in execution of the decree under Section 318 of the Code of Civil Procedure, for an order for delivery of possession of the property purchased by them, 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 be set aside.
2. The decree in question was obtained on the 24th April 1894. It purports to be a decree for rent, and it was made in a suit instituted by certain fractional shareholders of a zemindari. Having obtained this decree in respect of their share of the rent they brought the property in the occupation of the defendants, the judgment-debtors, and in respect of which the rent 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 applied for an order under Section 318 of the Code for delivery of possession. Thereupon, as already indicated, the judgment-debtors came in, in the first place, opposing the application of the decree-holder under Section 318, and secondly insisting that the sale itself was bad and should, therefore, be set aside.
3. It is unnecessary to refer to the earlier stages of the proceedings in the Courts below in connection with this matter.' It is sufficient to say that the last order that was made by the Court of First Instance on the 27th May 1898 was to the effect that the sale being a sale of a kursa 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 the judgment were to the effect that the property was not saleable, but which, we understand, really amounted to an order setting aside the sale.
4. On appeal against this order by the purchasers, the Subordinate Judge has held, having regard to the provisions of Sections 22, 65 and 73 of the Bengal Tenancy Act, that, in execution of a decree for rent, the occupancy right possessed by the defendants, judgment-debtors, was capable of being sold, though the decree itself was obtained by certain co-sharers in the zemindari. He has, however, observed that the other co-sharers might refuse to recognise the purchase on the part of the decree-holders; but that so far as the judgment-debtors are concerned, it is not open to them to contest the right of the decree-holders to bring to sale the holding in question. Accordingly he has ordered that the sale be confirmed, and that the objection of the judgment-debtors be disallowed.
5. It seems to us that the initial mistake that the learned Subordinate Judge has fallen into is this: He has regarded the decree in execution of which the property was sold as a decree under the Bengal Tenancy Act. The decree no doubt was a decree for rent, but it was obtained by some of the co-sharers in the zemindari, and not by the whole body of zemindars; and therefore 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 of Prem Chand Nuskur v. Noolcskoda Debt (1887) I.L.R., 14 Cal., 201, and Jugobundhu Pattuck v. Jadu Ghose Alkushi (1887) I.L.R., 15 Cal., 47.
6. If it was not a decree under the Bengal Tenancy Act, it is obvious thai the proceedings in execution thereof could only be in accordance with the provisions of the Code of Civil Procedure, and not with those of the Bengal Tenancy Act. The decree may well be regarded as a decree for money, in execution of which the property or rather the right, title and interest of the raiyat defendant in it were sold, if such right, title and interest in the holding were saleable under the law. The question that here arises is whether, having regard to the provisions of Section 266 of the Code of Civil Procedure, the holding was saleable; whether the raiyat had a disposing power in it. If he had not, it is obvious that it could not be sold in execution of the decree obtained by certain fractional shareholders in the zemindari.
7. The Court of First Instance, in the judgment to which we have already adverted, held that the holding was not saleable by custom or otherwise, but the Subordinate Judge has rather assumed than found that it was saleable. It has, however, been contended before us by the learned Vakil for the respondent that the sale having already been confirmed the question is no longer an open question between the parties, but it seems to us that the confirmation of sale is no bar to the application that has been made by the judgment-debtors to have it declared that in execution of the decree obtained by certain co-sharers in the zemindari the holding could not be sold; that he had no disposing power in it; and that therefore the sale has passed no interest whatever to the purchaser. The enquiry which should have to be made upon an application like this would be an enquiry under the provisions of Section 244 of the Code of Civil Procedure, uncontrolled by the provisions of Sections 311 and 312, which deal with irregularities in the conduct of sale and the confirmation of sale where such irregularities are not made out. In the case of Rasti Ram v. Fattu (1886) I.L.R., 8 All., 146, decided by a full Bench of the Allahabad High Court, where a judgment-debtor, who3e occupancy tenure had been sold in execution of a decree for money, brought a suit against the purchaser for recovery of the property, on the ground that the sale of the occupancy right in execution of the decree was illegal and void, being in contravention of the provision of the Rent Act which obtains in the North-West Provinces, it was held that the question involved in the suit was one of the nature referred to in Section 244(c) of the Code of Civil Procedure as determinable only by order of the Court executing the decree, and that the suit was, therefore, not maintainable. In delivering the judgment of the Court Mr. Justice Oldfield made the following observations, which are pertinent to the present enquiry: 'In the case before us, the judgment-debtor has sued the auction-purchaser to recover the property sold in execution of the decree, on the ground that the property, which is a tenant's right in land, is not by law saleable in execution of decree. This question is one which arose between the plaintiff judgment-debtor and the decree-holder, who is also the purchaser, and was determined against the former by the Court which executed the decree prior to the sale, and it is a question which must be considered to relate to the execution, discharge, or satisfaction of the decree. It is in effect whether any property was liable to attachment and sale to satisfy the decree. Certain things are by Section 266 of the Code of Civil Procedure not liable to attachment and sale. The question regarding liability to attachment and sale arising out of the provisions of Section 266 of the Code of Civil Procedure would clearly be questions within the meaning of Section 244 of 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 in the Rent Act; but equally with questions under Section 266 of the Code of Civil Procedure, it is one which falls within the meaning of Section 244 of the Code of Civil Procedure.' We concur in these observations.
8. But then a difficulty arises in this wise: An order for sale 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 parties to that order, or were aware of it, and did not appeal against it, they are now precluded from questioning the propriety of that order, and consequently of the sale that has taken place under that order. They say, however, in their application, to which we have already referred, that they were not aware of the proceedings in attachment of this property, nor of the proceedings in connection with the sale thereof, clearly indicating that they were not parties to the order for sale; and they say that this was owing to the fraud on the part 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 the matter and determine whether the judgment-debtors were parties to the order for sale or were aware of it. If this question be answered in the affirmative, then we are clearly of opinion that it is not open to them now to question the propriety of the sale that has already taken place.
9. The learned Vakil for the respondent has, however, argued that, assuming that, by custom or usage, the holding in question is not saleable, yet the interest of the judgment-debtors, whatever that might be worth, is saleable, and that it is certainly saleable at the instance of an execution-creditor, the contention being that the sale would be a sale only of the right, title and interest of the judgment-debtors in the property in question. In the case of Bhiram Ali Shaik Shikdar v. Gopi Kanth Shaha (1897) 1. L.R., 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 and discussed, the following observations, occurring in the judgment, are pertinent to the question now before us. After referring to the provisions of some of the sections of the Bengal Tenancy Act, which have been quoted in the judgment of the 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 the landlord in execution of a decree for rent; but though that is so, it does not follow from that an occupancy holding is saleable at the instance of the occupancy raiyat or of any creditor of his other than his landlord seeking to obtain satisfaction of his decree for arrears of rent' (the word 'landlord' here used we take to refer to the whole body of landlords)' such an inference is, in our opinion, clearly negatived by the absence in chapter V of any provision relating to the transferability of occupancy holdings. Nor does Section 73 warrant any contrary conclusion, seeing that there are cases in which occupancy raiyats may transfer their holdings without the consent of the landlord; we mean cases in which such holdings are transferable by custom or local usage' and so on.
10. We think, having regard to the observations we have just referred 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 this case in any other light than mere creditors) to bring to sale the interest of the occupancy raiyat in this holding, that it is open to the latter, having regard to the provisions of Section 266 of the Code of Civil Procedure, to raise the objection which they did raise in the Court below, namely, that the holding was not a saleable property.
11. We observe that the Court of Appeal below has come to no decision or finding upon the question, whether the holding was saleable either according to custom or usage. When this case is taken up again under the order of 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 Court below should be set aside and the case sent back to that Court for retrial with reference to the foregoing observations. Costs will abide the result.