KENARAM PAL Vs. KINU MANDAL

JUDGEMENT

(1.) This appeal arises out of proceedings in execution of a decree for money.

(2.) The appellant in execution of a decree for money sought to put up to sale a nontransferable occupancy holding of the defendant, The defendant thereupon appeared and contended that the holding being a non-transferable occupancy holding could not be put up to sale in execution of a money-decree.

(3.) The Court of first instance relying upon the Special Bench decision in the case of Chandra Benode Eundu V/s. Ala Bux A.I.R. 1921 Cal. 15 held that it was saleable. On appeal, the learned District Judge was of opinion that he should follow the decision in the case of Bhiram Ali v. Gopi Kanth Shaha (1897) 24 Cal. 355 until it was overruled by this Court, and that the question, whether an ordinary execution creditor can put up a nontransferable occupancy holding to sale in spite of the objections of the raiyat, was not referred to, nor considered by the Special Bench. 2. No doubt, the question which was referred to the Full Bench was - "Is the sole landlord of a raiyat, competent to-sell in, execution of a money-decree against the raiyat, his occupancy holding, unless the holding is transferable by usage-or custom?" In order to decide that-question however it was necessary to consider the correctness of the decision in Bhiram Ali V/s. Gopi Kanth (1897) 24 Cal. 355 as regards. voluntary alienations of non-transferable occupancy holdings. It was also necessary to consider the correctness of the decision of the Full Bench in the case of Dayamayi V/s. Anunda Mohan (1914) 42 Cal. 172 in so far as it adopted the rule laid down in Bhiram Ali's case (1897) 24 Cal. 355, as developed in the later cases, and that was the reason why the Special Bench was constituted. The-Special Bench came to the conclusion that the case of Bhiram Ali V/s. Gopi Kanth (1897) 24 Cal. 355 was erroneously decided, and that the decision of the Full Bench in Dayamayi V/s. Ananda Mohan (1914) 42 Cal. 172 required1 partial modification, namely, that the following should be substituted for the, first proposition enunciated therein regarding the transfer for value of occupancy holdings apart from custom or local usage. "The transfer of the whole or a part is operative as against the raiyat whether it is made voluntarily or involuntarily." 3. Now, the Full Bench in the case of Dayamayi V/s. Ananda Mohan (1914) 42 Cal. 172 laid1 down the proposition that the transfer of the whole or a part is operative against the raiyat- (a) where it is made voluntarily: (b) where it is made involuntarily and the raiyat with knowledge fails or omits to have the sale set aside.