CHANDRA BINODE KUNDU Vs. SHEIKH ALA BUX DEWAN AND ON HIS DEATH ONE OF HIS HEIRS AND LEGAL REPRESENTATIVES, SAMARTABAN BIBI

JUDGEMENT

(1.) This is an appeal by a decree-holder from an order made by the Court of Appeal below in affirmance of an order of dismissal passed by the primary Court on an application for execution of a decree. The applicants hold a degree for money against the respondent; and in execution of that decree they have attached his holding. It so happens that the applicants are the landlords of the respondent, who is a raiyat with right of occupancy in the attached holding. His objection is that the holding is not transferable by custom or local usage and cannot be sold in execution of the decree held by the applicant. The Courts below have given effect to this objection and have held that a non-transferable occupancy holding cannot, if the ryot objects, be sold in execution of a decree for money, even though the decree-holder be the sole landlord of the ryot. There is no authority in this Court which explicitly affirms this proposition; but the question was raised and decided in Macpherson v. Debi Bhushan 42 Ind. Cas. 36 : 2 P.L.J. 530 where it was ruled that even a sole landlord cannot in execution of a money-decree sell his ryot s occupancy holding if the ryot objects, unless the holding is transferable by custom or local usage. This decision of the Patna High Court is not binding upon this Court as an authority. But it was argued on behalf of the judgment debtor before the Division Bench which heard the present appeal in the first instance, that the view taken in the case just mentioned is a logical deduction from the rule recognised in Narayini v. Nabin Chandra 36 Ind. Cas. 803 : 21 C.W.N. 400 : 44 C. 720 35 C.L.J. 351 as derivable from the proposition enunciated by the Full Bench in Dayamoyi v. Ananda Mohan Roy 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52 (F.B.) which, again it was contended, substantially adopted the principle laid down in Bhiramali v. Gopi Kant 24 C. 355 : 1 C.W.N. 396 : 12 Ind. Dec. (N.S.) 904. On the other hand, it was argued before the Division Bench on behalf of the decree-holder, that a contrary view was deducible from other decisions of this Court which had never been expressly overruled, such as Ananda Das v. Ratnakar 7 C.W.N. 572 and Shukuruddin Chowdhury v. Rani Hemangini Debi 13 Ind. Cas. 192 : 16 C.W.N. 420. In view of this conflict of judicial opinion, the Division Bench has referred the following question for decision by a Full Bench: Is the sole landlord of a ryot competent to sell, in execution of a money-decree against the ryot, his occupancy holding, unless the holding is transferable by usage or custom?

(2.) When the case was opened before the Full Bench, it became manifest that the decision in Dayamoyi v. Ananda Mohan Roy 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52 (F.B.) itself might require examination, as, indeed, would be plain from the following sequence of propositions: (1) In the absence of custom or local usage to the contrary, a ryoti holding, in which the ryot has only a right of occupancy, is not saleable at the instance of the occupancy ryot or any or editor of his other than his landlord seeking to obtain satisfaction of his decree for arrears of rent Bhiramali v. Gopi Kant 24 C. 355 : 1 C.W.N. 396 : 12 Ind. Dec. (N.S.) 904. (2) A judgment-debtor whose occupancy holding, though not transferable by custom or local usage, is sought to be sold in contravention of the above rule, may object to the proposed sale if he is aware of the execution proceeding otherwise, if a sale takes place, he may object, even after the confirmation of the sale, when possession is delivered to the execution purchaser, Durga Charan v. Kali Prosanna 26 C. 727 : 3 C.W.N. 586 : 13 Ind. Dec. (N.S.) 1064. (3) In transfers, for value, of occupancy holdings, apart from custom or local usage, the transfer is operative (a) as against the ryot, when it is made involuntarily and the ryot with knowledge fails or omits to have the sale set aside, and (b) as against the landlord in all case s in which it is operative against the ryot, provided the landlord has given his previous or subsequent consent. Dayamoyi v. Ananda Mohan Roy 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52 (F.B.). (4) An occupancy holding which is not saleable by custom or local usage cannot be sold in execution of a decree for money obtained against the ryot, when the ryot objects, even if all the landlords gave their consent to the sale. Narayani v. Nabin Chandra 36 Ind. Cas. 803 : 21 C.W.N. 400 : 44 C. 720 35 C.L.J. 351. (5) The sole landlord of a ryot cannot, if the ryot objects, sell his occupancy holding in execution of a money decree, unless the holding is transferable by custom or local usage Macpherson v. Debi Bhushan 42 Ind. Cas. 36 : 2 P.L.J. 530.

(3.) It is indisputable that the appellant before us, in order to succeed, must assail the decision in Bhiramali v. Gopi Kant 24 C. 355 : 1 C.W.N. 396 : 12 Ind. Dec. (N.S.) 904 and also the Full Bench decision in Dayamoyi v. Ananda Mohan Roy 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52 (F.B.), to the extent that it accorded approval to the substance of the principle embodied in that case. In these circumstances this Special Bench has been constituted to consider the question referred, so that we may be free, in accordance with the rules of the Court, to examine the correctness of the Full Bench decision in Dayamoyi v. Ananda Mohan Roy 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52 (F.B.), in so far as it affects the present matter. Consequently, as might have been anticipated the elaborate arguments addressed to us on the question of the nature and incidents of occupancy right have centered round the decision in Bhiramali v. Gopi Kant 24 C. 355 : 1 C.W.N. 396 : 12 Ind. Dec. (N.S.) 904. On the one hand, it has been maintained by the decree-holder that it departed on erroneous grounds from what was, at the time, really well settled law; it has been contended, on the other hand, that it merely gave effect to what had been the accepted view on the subject from the date of the Permanent Settlement.