Ghose and Hill, JJ.
1. As we understand the facts in this case, they are shortly these. A certain person obtained a decree which, to all intents and purposes, may be regarded as a, decree for money. He transferred that decree to the petitioners in the Court below, and they applied for attachment and sale of a certain occupancy holding belonging to the judgment-debtor. The question raised before the Court of First Instance was whether this occupancy holding was transferable according to custom or usage. The applicants for attachment and sale did not, upon the date fixed for trial, adduce evidence upon this matter, and the Munsif held that they were not entitled to sell the said occupancy holding. There was then an appeal preferred to the higher Court, and in this appeal the Subordinate Judge has held, if we understand him correctly, that the question whether the occupancy holding was saleable or not according to custom or usage could not at that stage be determined under Section 244 of the Code of Civil Procedure; and he has accordingly ordered that the property be sold.
2. We think that the Subordinate Judge has taken an erroneous view of the question raised before him. We are of opinion that it was quite competent to the judgment-debtor to raise the question at the stage that he did raise it, namely, that the holding was not saleable, and that, therefore, the applicants were not entitled to attach it and put it up for sale. If the question could be determined at a later stage of the proceedings, as the Subordinate Judge seems to think, we fail to understand why it could not be dealt with at the very outset, namely, when the application was made to attach and sell the holding. The question raised clearly falls, in our judgment, within Section 244 of the Code of Civil Procedure, and therefore it was necessary for the Subordinate Judge to deal with it. We may refer the Subordinate Judge to a recent decision of this Court in the case of Durga Charan Mandal v. Kaliprasanna Sarkar (1899) I.L.R., 26 Cal., 727, and also to the case of Bhiram Ali Shaik Shikdar v. Gopi Kanth Shaha (1897) I.L.R., 24 Cal., 355, quoted in that decision. We think that the principle that underlies both these cases applies to this case as well.
3. In this view of the matter, the order of the Subordinate Judge cannot be sustained; but at the same time, it being doubtful whether the parties appreciated the true question between them in proper time, we think it would be right and proper to allow the applicants an opportunity of proving, if they can, that the holding which they asked to be attached and put up for sale is saleable according to custom or usage. We accordingly set aside the orders of both the lower Courts, and send back the case to the Court of First Instance in order that the question raised between the parties may be tried out after allowing them an opportunity of adducing evidence upon it.
4. The costs of this Court and also the costs of the lower Courts will abide the result.