1. This is an appeal against an order passed by the lower Appellate Court in an appeal preferred to that Court against an order passed by the Court of first instance on a petition of objection under Section 47 of the present Code, which corresponds to Section 244 of the old Code. It appears that the present respondent brought a suit for recovery of rent for a certain holding against Chandra Kumar Poddar, who was the original holder and against defendant No. 3, the present applicant who was the purchaser of the holding from Chandra Kumar Poddar. The suit was for the recovery of rent, cesses and damages from 1311 to 1313. We understand from the learned Pleaders who have appeared before us that in that suit defendant No. 1 did not appear and that defendant No. 3, the present appellant, appeared and contended that she was not liable for the rent claimed in the suit which had accrued prior to the date of her purchase, that is to say, for the rent due from 1311 up to the end of the first quarter of 1313. The suit was tried and the result was that the present respondent obtained a decree against defendant No 1, the original tenant, for a sum of Rs. 700 odd being the rent due from 1311 up to the end of the 1st quarter of 1313 and against defendant No. 3, the present appellant, for Rs. 200 odd, being the rent due for the holding from the second quarter of 1313 up to the end of that year. Afterwards, the present respondent as decree-holder took out execution of the decree. Defendant No. 3 paid off the sum of Rs. 200 odd for which the decree had been obtained against her and the decree-holder sought to recover the sum of Rs. 700 odd decreed against defendant No. 1 by a sale of the holding. The defendant No. 3, the present appellant, then put in a petition of objection under Section 47 of the Code of Civil Procedure, contending that under the terms of the decree as framed, the holding which had passed into her hands could not be sold in satisfaction of the decretal debt which the decree-holder had obtained against defendant No. 1. Both the lower Courts have held that this contention is invalid Both Courts have held that under the provisions of Section 65 of the Bengal Tenancy Act, the decree-holder had a first charge on the holding for realisation of the rent and that he was entitled, therefore, to have the holding put to sale in satisfaction of the decree which he had obtained against defendant No. 1 the original tenant.
2. Against that decision and orders, the present appeal has been preferred. And the question which we have to consider is whether under the terms of the decree as framed in the suit brought by the respondent, the original plaintiff, the respondent, could claim to execute the decree by sale of the holding on the ground that the rent constituted a first charge on the holding. In our opinion, this case can only be decided on the terms of the decree obtained by the decree-holder. The decree for recovery of the sum of Rs. 700 odd due up to the end of the first quarter of 1313 was against defendant No. 1 only and there is nothing in the decree to provide that that sum could be recovered from defendant No. 3, the transferee, into whose hand the holding had passed. The only question, therefore, that arises in this case is, whether under the law the decree-holder respondent was entitled to obtain satisfaction of the decretal debt due to him from defendant No. 1 by sale of the holding, the proprietary right in which had passed into the hands of defendant No. 3, the present appellant. We can find no authority to support the contention that the respondent was entitled, as the decree is drawn, to sell the holding belonging to defendant No. 3, in satisfaction of the decree which he had obtained against defendant No. 1 alone. This does not appear, in our opinion, to be a case in which the provisions of Section 65 of the Bengal Tenancy Act can be taken to apply. We think, that under the terms of the decree which the decree-holder accepted in the suit, it is not open to him to put up for sale in satisfaction of the decretal debt due from defendant No. 1 the holding which had become the property of defendant No 3.
3. The result, therefore, is that we decree the appeal, set aside the orders of the lower Courts and direct that the application of the present appellant be granted and that the decree-holder respondent be prohibited from selling the holding in satisfaction of the decretal debt due to him from defendant No. 1.
4. The appellant is entitled to receiver his costs from the respondent in this and in the lower Courts. We assess the hearing fee in this Court at two gold mohurs.