SRIMATI NARAYANI Vs. NABIN CHANDRA CHOWDHARI

JUDGEMENT

(1.) This appeal arises out of proceedings in execution of a decree. The decree-holder- respondent in execution of a decree for money attached certain raiyati holdings belonging to the judgment-debtor. He obtained the consent of the entire body of landlords to the attachment and sale of some of the holdings, and with regard to some others he obtained the consent of the landlords representing a 10 annas 8-pies share. The judgment-debtor objected to the attachment and sale on the ground that they are not transferable. The holdings have been found to be non-transferable but the Court of Appeal below has overruled the objection holding that a non-transferable holding may of course be attached with the consent of the landlords and in the case of fractional landlords to the extent of their share The judgment- debtor has appealed to this Court.

(2.) Now, the Full Bench in the case of Dayamoyi v. Ananda Mohan Roy Ghowdhury 27 Ind. Cas. 61 : 42 c. 172 : 18 C.W. have laid down that an involuntary transfer i.e.,a sale in execution of a money-decree of the whole or part of an occupancy holding, apart from custom or local usage is operative against the raiyat where the raiyat with knowledge fails or omits to have the sale set aside. As pointed out in Badarennessa Ohowdhurani v. Alam Qazi 29 Ind. Cas. 61 : 42 C.W.N. 814 : 21 C.L.J. 650, the question of the omission or failure to set aside the sale with knowledge thereof becomes material only where the sale is invalid and the raiyat has a right to object to it. The Full Bench decision therefore by implication holds that the raiyat is entitled to have a sale of the holding in execution of a money-decree set aside after it takes place and that the holding cannot be sold in execution of such a decree where the raiyat objects to the sale before it takes place.

(3.) Before the Full Bench decision it was held that a sale in execution of a money-decree of an occupancy holding is valid and effectual if the sale is held with the consent of the landlord see Ananda Das v. Ratnakar Panda 7 C.W.N. 572, and that even a share of a holding can be sold with the consent of the co-sharer landlords to the extent of their share Lsee ShuJcurwtdin Choivdhury v. Rani Hemangini Debt 13 Ind. Cas. 192 : 16 C.W.N. 420 J. But the view taken in those cases can no longer be maintained having regard to the decision of the Full Bench, which as stated above impliedly lay down that a sale of an occupancy holding cannot be held in execution of a money-decree if the tenant objects to the sale. It is true the decree-holder has obtained the consent of the landlords. But in the case of a non-transferable holding as the raiyat cannot confer a title upon the purchaser without the consent of the landlord so the landlord alone by his own act and without the concurrence of the raiyat cannot create a title in the purchaser. The two must concur in order that the transfer may be valid Having regard to the view taken by the Full Bench as to the involuntary transfer we are unable to hold that the entire holding or a part of it can be sold in execution of a money-decree if the raiyat objects to the sale even if the landlords give their consent to such sale. It is needless to point out that this does not apply to a sale held in execution of a decree found ad on a mortgage or charge voluntarily made by the raiyat, in which case the transfer though involuntary is operative against the raiyat, as expressly laid down by the Full Bench.