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Judgment
Das, J
This appeal is directed against an order of the learned District Judge of Gaya, dated the 3rd December, 1921. The decree-holders are the appellants before us and they attempted to execute a decree which they had obtained as against the respondents. The learned District Judge has come to the conclusion that the application is barred by Article VI of the third Schedule of the Bengal Tenancy Act and that the decree-holders are not entitled to sell a portion of the occupancy holdings of the defendants.
In my opinion, the view taken by the learned District Judge is an erroneous one. The plaintiffs were the fractional landlords; but at the time when they instituted the suit there was no relationship of landlord and tenant as between the plaintiffs and the defendants.
The essential conditions which must be satisfied in order to attract the operation of Article 6, Schedule III of the Bengal Tenancy Act are these : First, the decree must be obtained in a suit between the landlord and tenant; and, secondly, the provisions of the Bengal Tenancy Act must be applicable to them. Here neither of these conditions is satisfied; and, in my opinion, Article 6, Schedule III of the Bengal Tenancy Act did not apply.
So far as the other point is concerned, the matter is concluded by a decision of the Full Bench of this Court in Jugeshwar Misra v. Nath Koeri A. I. R. 1922 Pat 114=1 Pat. 317 (F. B). The Full Bench of this Court came to the conclusion in that case that the decree-holder not being the landlord of the holding can, against the will of the judgment-debtor and without the express consent of the landlord, cause a portion of the judgment-debtor''s occupancy holding to be sold in execution of a money-decree where there is no local custom of transferability. The decree-holder in this case is not the landlord of the holding and he is proceeding as against a portion of the occupancy holding of the judgment- debtor.
I would allow this appeal, set aside the decree of the Court below, and direct that the execution do proceed.
Coutts, J.
I agree.