1. This appeal, which has been preferred by a purchaser at a sale in execution of a decree for arrears of rent, is ' directed against an order of the Subordinate Judge of Jessore setting aside the sale. The sale which has been reversed took place on the 20th February 190G. On the 13th November following the present respondent made an application to set aside the sale on the ground of fraud and irregularity. The title which was set up by him was based on a purchase at a sale in execution of a mortgage decree on the 19th November 1903. The Court of first instance found that the property was not transferable and, there fore, the applicant had no locus standi under Sections 244 and 311 Civil Procedure Code. Upon appeal the learned Subordinate Judge has held that as rent was received from the respondent by the landlord on the 24th June 1906 he has been recognised as a tenant and is consequently entitled to maintain this application. On the merits, the Subordinate Judge has found that the sale is vitiated by fraud and has consequently reversed it.
2. The auction purchaser has now appealed to this Court. On his behalf it has been contended, first, that the applicant has no locus standi because his purchase at the mortgage sale took place on the 19th November 1903, that is, long before the rent suit was instituted, and that consequently he is not a representative of the judgment-debtor and is not entitled to make an application under Section 244 Civil Procedure Code; and secondly, that in no event is the applicant entitled to apply under Sections 244 and 311 Civil Procedure Code until he establishes that the property in question was transferable and he had acquired a valid interest in it by his purchase on the 19th November 1903.
3. So far as the first contention is concerned we are of opinion that it cannot be sustained in view of the decisions in Azgar Ali v. Asaboddin Kazi 9 C.W.N. 134 and Srimati Nissa Bill v. Radha Kishore Manikya 11 C.W.N. 312. These cases lay down that when the landlord of an occupancy holding obtains a decree against the registered tenant, an unregistered transferee of the tenant into whose hands the holding has passed in whole or in part, is bound by the decree and is, therefore, a representative of the judgment-debtor within the meaning' of Section 244 of the Code. If, therefore, it is established that the property in question was transferable and that the petitioner acquired a valid interest therein by his purchase, he is on the authority of these decisions a representative of the judgment-debtor and is entitled to maintain the application under Sections 244 and 311 Civil Procedure Code, The first contention advanced on behalf of the appellant must, therefore, be overruled.
4. So far as the second contention is concerned, we are of opinion that there is considerable force in it. The Court of first instance found that the applicant had not proved that the interest of the original tenant was higher than that of an occupancy raiyah and that he had failed to show that an occupancy holding in that part of the country was transferable by custom or usage. The learned Subordinate Judge has not displaced this finding but has proceeded on the ground that there was a valid recognition of the purchase of the respondent by the landlord so as to make that recognition binding upon the appellant. This view is clearly erroneous and no attempt has been made to support it in this Court. The alleged recognition took place sometime after the purchase by the appellant. It was clearly not open to the landlord at that stage to recognise the purchase of the respondent in 1903 so as to prejudice the position of the appellant. It is necessary, therefore, to determine whether the respondent acquired a valid title by his purchase on the 19th November 1903. The solution of this question must depend upon the determination of the character of the tenancy. If it is established that the original tenant was a raiyat holding at a fixed rate of rent, the holding is, of course, transferable, If on the other hand, it is established that the holding was that of an occupancy or non-occupancy raiyat or that the interest of the tenant was that of an under-raiyat the holding would not be transferable except by custom or usage. The case must, therefore, be remanded for investigation of this point and this point only, and the Subordinate Judge will be at liberty to take any evidence which may be adduced by the parties to prove their respective allegations. If the Subordinate Judge comes to the conclusion that the interest of the mortgagor was not transferable, the application must stand dismissed. On the other hand if he finds that the interest of the mortgagor was transferable the application is maintainable and the sale must be reversed.
5. The costs of this appeal will abide the result. We assess the hearing fee at two gold mohurs.