1. This appeal arises as follows. The respondent is a four anna co-sharer in a certain estate : and brought a rent suit against appellant No. 1 joining his co-sharers as defendants and claiming 16 annas of the rent due. The suit was decreed against the tenant defendants and it was ordered that the 4 anna share of the present respondent should be shown, and that he should get the entire costs of the suit. On appeal this decision was upheld by the Sub-Judge, and it was added to make it more clear it is farther ordered that a decree for the entire 16 annas rent...be passed jointly in favour of the plaintiff as also in favour of the pro forma defendants, the maliks, that out of that the plaintiff do get to the extent of 4 annas and the other maliks the pro forma defendants do get the remaining 12 annas.' The decree was drawn up accordingly, and execution was taken out only for a 4 annas share.
2. The judgment-debtor thereupon made an objection under Section 214 Civil Procedure Code on the ground that the property attached and advertised for sale was non-transferable and that the decree-holder as a fractional owner could not bring it to sale. The Munsif held that the judgment-debtor failed to prove that the holding was not transferable by local custom or usage, and that whether this was so or not the holding would pass, under Section 65 of the Bengal Tenancy Act as the decree was for the entire holding though execution had been taken out only for a part. On appeal to the District Judge this decision was upheld, the Court holding that the holding was not proved to be not saleable by custom, and that the decree being for the whole rent due was a rent decree and not a money decree and that Section 65 consequently applied.
3. Under these circumstances we have to decide on second appeal what is the effect of the decree that has to be executed. Is it a rent decree under which the holding can be brought to sale, or is it merely a money decree? If it is a money decree can it be executed under the present proceedings? No question has been raised before us that the decree in the appeal is the decree that is to be executed. It is, therefore, the meaning of this decree that is to be ascertained. In the first place, however, we have to observe that the original decree was justified by authority, namely, Tara Chunder Banerjee v. Ameer Mundul 22 W.R. 394 and Jadoo Skat v. Kadnmbinee Dassee 7 C. 150 : 8 C.L.R. 445 decided before, and Prem Chand Nuskur v. Mokshoda Debi 14 C. 201 decided after the passing of the Bengal Tenancy Act. In Pramada Nath Roy v. Ramani Kanta Roy 85 C. 331 (P.C.) : 7 C.L.J. 139 : 12 C.W.N. 249 : 10 Bom. L.R. 66 : 18 M.L.J. 43 : 3 M.L.T. 151 : 35 I.A. 73 also, where a co-sharer sued patnidars under the Bengal Tenancy Act for the whole rent of the tenure, joining his co-sharers as defendants it was held by the Privy Council that it was a general rule, not derived from the Bengal Tenancy Act but from the general principles of legal procedure and applicable to cases under the Act, that 'a sharer, whose co-sharers refuse to join him as plaintiffs, can bring them into the suit as defendants, and sue for the whole rent of the tenure.' The principle has now been embodied in Section 145A of the Bengal Tenancy Amendment Act of 1907 in such a way as to suggest rather than to exclude the idea that it was already applicable,
4. Reading the appellate decree as a whole, however, it seems impossible to avoid the conclusion that the appellate Court read the decree of the first Court as being a joint decree in favour of the plaintiff and his co sharers as otherwise we must take it that the Court transferred the plaintiff's co-sharers to the category of the plaintiffs without their consent which he could net do. We are not concerned with the legality of this view as the present case arises out of execution proceedings, and the executing Court cannot go behind the decree : but the effect of if is that the decree on which the decree-holder is acting is a decree for the whole rent, and it is open to the plaintiff to execute it whether the holding is transferable or not. We must next consider what the execution is that he is seeking. He does not appear to be, proceeding under the provisions of the Bengal Tenancy Act for bringing the holding to sale : for the attachment process and sale proclamation have not been issued simultaneously according to Section 163 (1) of the Act, nor does the sale proclamation contain such a statement as to incumbrances as is prescribed in Sub-section (2) of the same section. On the contrary attachment was issued on the 27th May, and the sale proclamation on the 11th Juno. The position of the co-sharers also is left undefined, for the decree-holder seeks to execute the decree only in respect of his own share. We are not concerned to decide what was the appropriate procedure to be followed on the decree we have under consideration; but the procedure that has been followed leaves us no choice but to hold that the decree-holder is pursuing his remedy as for the execution of a money-decree. The question then arises whether the holding was transferable or not. The Munsif s decision on this point has been accepted by the District Judge without any further consideration of the point and is to the effect that the judgment-debtor failed to prove that the holding is transferable. In thus putting the onus of proving non-transferability on the judgment-debtor we are of opinion that. he was wrong. The decree-holder was' attempting to sell an occupancy right which is the creation of the law and was transferable or not according to the custom of the locality, and it was for him to prove that the holding was transferable. It was no part of his case to do this, and indeed as landlord it would be against his: interest to do so. The correct finding would, therefore, have been that the decree-holder has not proved transferability. Moreover, if the onus is on the judgment-debtor to, prove non-transferability the execution petition which treats the holding as an occupancy holding must be regarded as creating a prima facie case in his favour, which the decree-holder has done nothing to displace.
5. Under these circumstances we hold that the sale that has taken place has passed nothing, and the decree-holder must he-relegated to his rights under the law as regards a fresh execution. The appeal is accordingly allowed with costs in all the Courts. This judgment applies to the analogous cases Nos. 855 to 373 of 1908.
6. We assess a hearing fee of a gold mahur on each of the appeals.