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Judgment
Dhavle, J.—This is an appeal by the judgment-debtor. In execution of a decree for arrears of rent the decree, holder respondent proposed to proceed in execution against the appellant''s house in Buxar. This was refused by the executing Court on the ground that what the landlord was taking out was a rent execution and that u/s 177A(b), Bihar Tenancy Act, the house of the judgment-debtor cannot be sold in execution.
The landlord appealed, and the lower appellate Court considered that the decree-holder was entitled to take out a money execution and that this was a money execution, with the result (so the Court took it) that the matter was not governed by Section 177A(b), and that therefore the house could be sold.
It has been contended on behalf of the judgment-debtor-appellant that the lower appellate Court fell into an error as regards the application of Section 177A.A rent execution strictly so called is execution against the holding following upon a rent decree strictly so called, and cases are not unknown where holders of rent decrees strictly so called fail to bring about a rent execution by inadvertence, for example, in leaving out one of the judgment-debtors during the execution proceedings. Section 177A gives exemptions which are not, in terms at any rate, confined to rent executions. It says that a decree for arrears of rent obtained against a raiyat or an under-raiyat shall not be executed (a) by the detention in the civil prison of the judgment-debtor, or (b) by the sale of houses and other buildings...belonging to the raiyat or under tenant and occupied by him; and to Clause (b) an exception is furnished by the proviso that any such house or building...may be sold in execution of decrees for arrears of rent due in respect of the site of such house or building. It follows from this proviso that the houses of raiyats and under-raiyats are saved from execution sales when the execution relates to decrees for arrears of rent due in respect of lands other than the sites of the houses. But execution against the site of a house on a decree for arrears of rent due in respect of other land would obviously be a money execution as distinguished from a rent execution, and it is precisely in such cases that Clause (b) of Section 177A exempts houses from sale. It is impossible to agree with the learned Subordinate Judge that Section 177A does not apply to money executions and that therefore the house of the judgment, debtor can be sold.
The Assistant Government Advocate who appears for the respondent-decree-holder has not contested the point made by Mr. Sinha on behalf of the appellant, so far as the exemption of the raiyat''s house in execution of a decree for arrears of rent due in respect of land other than the site of the house is concerned.
He has, however, contended on the authority in Baijnath Ram Marwari Vs. Rai Kumar Sinha, , that what Clause (b) of Section 177A saves is a house belonging to the raiyat and occupied by him as such. In the present case, as I understand, the house that the decree-holder desires to bring to sale in execution is situated in Buxar, while the land which was the subject-matter of the rent suit brought by the respondent lies a couple of miles away.
The appellant is or was working about the Courts in Buxar, and it is a serious question in the case whether or not the house that the decree-holder desires to proceed against is occupied by the appellant as a raiyat. Mr. Sinha has urged that this point should not be now investigated because it has so far been taken for granted that the house is occupied by the appellant as a raiyat.
Of this, however, I can see no trace in the papers before me. The result is that while the view of the lower appellate Court that the house can be sold because Section 177A does not apply to money executions must be overruled, I am not in a position to dispose of the appeal finally, for the decision must turn on a finding on the question whether or not the house is occupied by the appellant as a raiyat.
On this point the lower appellate Court will remand the case to the trial Court for taking evidence and recording a finding. The lower appellate Court will then dispose of the appeal in accordance with the law. The costs of the hearing in this Court, including a hearing fee of one gold mohur, will abide the event, and there will be no order regarding the costs already incurred in the lower appellate Court.