TARINI PROSAD ROY Vs. DEVA PRASANNA MUKHERJEE

JUDGEMENT

(1.) The petitioner before us who obtained this Rule on the 5 of October 1920, purchased from a tenant in execution of his own mortgage decree certain land, In the year 1327 in the month of Pous, he got possession of the property through the Court. In the year 1919 prior to the sale in execution of the mortgage-decree the landlord of the land sued his tenant for rent in respect of the year 1322 to 1325. The landlord obtained a decree and the property was sold on the 25 October 1922 and was purchased by the landlord himself. The petitioner before us applied under the provisions of Order 21, Rule 90 alleging that the sale was not) a proper one and amongst other things that the sale proclamation had not been served. The Munsif gave effect to this contention. An appeal was preferred by the landlord to the District Judge against the Munsif's decision and the point there taken, on behalf of the landlord, was that the holding was a non-transferable occupancy holding, and the District Judge, holding that this contention was well-founded and that no interest passed by the sale to the mortgagee, decided that the mortgagee had no locus stand. to make the application under the provisions of Order 21, Rule 90. We think that this decision is not correct). According to the decisions of this Court, the effect of a transfer of a non-transferable occupancy holding is good so far as the tenant is concerned and although the landlord was not bound to recognize the transfer, it would be good against him, unless he declined to recognize the transfer. In the circumstances, It is impossible to say that no interest passed by the sale to the mortgagee and that the appellant had no locus standi to make the application under Order 21, Rule 90.

(2.) In the circumstances the order of the District Judge must be set aside and the matter must go back to the District Judge in order that the appeal in respect of the application under Order 21, Rule 90 may be dealt with upon its merits.

(3.) The petitioner will be entitled to his costs in this Rule; hearing fee one gold mohur.