1. This appeal comes from the District of Sylhet in which Bengal Ant VIII of 1869 is still in force and is directed against an order of the Additional Subordinate Judge of that District by which he has held that an occupancy holding may not be sold in execution of a decree obtained by the sixteen annas landlords for its own arrears.
2. In the case of Chandra Benode Kundu v. Sheikh Ala Bux 58 Ind. Cas. 353 : 24 C. W. N. 818 : 31 C. L. J. 510 (F. B.) : 48 C, 184, recently decided by a Special Bench of this Court and reported as Chandra Benode Kundu v. Sheikh Ala Bux 58 Ind. Cas. 353: 24 C. W. N. 818 : 31 C. L. J. 510 (F. B.) : 48 C. 184, it has been shown that in 1834, 1845 and again in 1845 it was held by the Sadar Dewani Adalat that in Bengal occupancy holdings might be fold in execution of degrees for money provided that the sale was at the instance of or with the consent of the landlord.
3. It does not appear that this general principle was affected or modified either by Act X of 1859 or Act VIII of 1869.
4. In the same case it has further been pointed out that, when it is raid that an occupancy holding is not transferable except by custom or local usage, the true meaning of these words is that to the transfer of an occupancy holding, in the absents of custom or local usage to the contrary, the consent of the landlord is necessary.
5. If an occupancy holding is transferable with the consent of the landlord in execution of a decree for money, a fortiori, it is transferable at the instance of the landlord in execution of a decree for its own arrears.
6. The allegation of the landlord that satisfaction of the decree could not be obtained by execution against the person and moveable property of the judgment' debtor was apparently not traversed in either Court below.
7. We, therefore, decree this appeal and set aside the orders of both Courts below.
The landlord appellant will be at liberty to proceed against the holding in question. He will also have his costs in this Court, Pleader's fee one gold mohur.