Madanmohan Panigrahy vs Bandu Barik

ReginaldRoe, J.—The appellant in this case is dissatisfied with an order of the District Court of Cuttack decreeing an appeal made by the judgment-debtor against an order of the Munsif, 1st Court of Cuttack, putting up to sale his occupancy right and under-raiyati holding in execution of a money decree. It is accepted by the learned Vakil for the appellant that in view of the recent decisions of this Court the order regarding the occupancy right as made by the District Court was a correct order but it is contended that the District Court was wrong in preventing the sale of the under-raiyati holding held by the judgment-debtor. It is further urged that the appeal to the District Court was ab initio incompetent by reason of the fact that it was out of time, the order of the Court below not having been filed along with the memorandum of appeal.

We may deal shortly with the latter contention. There is nothing whatever upon the order-sheet of the learned Judge to indicate the basis of the ground here taken. There is nothing in the argument before the learned Judge to indicate the nature of the defect now urged before us, and it is impossible for this Court to deal with a question of law the determination of which is based upon a question of fact which has not been ventilated in the Court below.

With regard to the question, whether an under-raiyati holding can be sold in execution of a money decree, it is the universally accepted view that an under-raiyat has no transferable interest in his holding unless it be definitely proved by custom to be transferable. No evidence was offered upon this point in the Court below and we must, therefore, accept the position that this under-raiyati holding is subject to the general custom that an under-raiyat has no transferable interest therein. This appeal is dismissed with costs.

Miller, C.J.

I agree.