GURUDAS SAHA Vs. SHAIKH HIRA GAZI

JUDGEMENT

(1.) The facts of the case out of which this second appeal has arisen are these: the present appellant in execution of a mortgage-decree sought to put to sale the raiyati holding of the judgment-debtor, respondent. The judgment-debtor objected to the sale on two grounds: firstly, that the holding could not be sold as the raiyati holding was not transferable without the landlord's consent; and secondly, that being an agriculturist by occupation he was entitled to the protection accorded by Section 60, Civil P.C. The first Court decided both these points against the judgment-debtor respondent. In appeal the learned Subordinate Judge held that as the attaching decree-holder was not the landlord and as there was no evidence to show that the holding was transferable by custom or usage and as the consent of the landlord was not alleged to have been obtained, the decree-holder was not entitled to put to sale the raiyati holding of the judgment-debtor respondent. In this view of the case he held that it was not necessary to decide the other objection raised by the judgment-debtor and allowed his objections.

(2.) The learned vakil who has appeared for the decree-holder appellant before us contends that a non-transferable occupancy holding is liable to be sold at an execution sale at the instance of an ordinary creditor without the consent of the landlord and that the consent of the landlord is not necessary in such a sale. In support of this contention he has referred us to the decision of the Court in the case of Kenaram Pal V/s. Kinu Mandal , a decision to which one member of this Bench was a party. This decision, undoubtedly, supports the case of the decree-holder and we are bound to follow it. We are, therefore, of opinion that a non- transferable occupancy holding is liable to be sold at an auction sale at the instance of an ordinary creditor.

(3.) The result, therefore, is that this appeal is allowed, the order of the Court below set aside and the case sent back to the lower appellate Court for the decision of the question raised by the judgment-debtor under Section 60, Civil P.C. Costs will abide the result.