Madhu Padhan vs Jagu Jena

This is an appeal against an order of the District Judge of Cuttack, dismissing an appeal from an order of the Munsif upholding an objection made by an occupancy raiyat to the sale of his holding in execution of a money decree upon the ground that it was not transferable, Sub-section (4) of section 31 of the Orissa Tenancy Act provides that save in certain cases of private sale, for which express provision is made in the earlier portion of the section, no transfer of an occupancy holding or portion thereof otherwise than by a succession or by sale in execution of a decree for arrears of rent shall he valid against the landlord of the holding unless and until he has consented thereto. It has been contended before us that the meaning of this sub-section is that such transfers shall be valid otherwise than against the landlord. On the other hand, the current of decisions up to the passing of the Orissa Tenancy Act and thereafter has teen uniform, and it was long ago established that an occupancy raiyat can on his own behalf object to the sale of his holding in execution of a money decree. It is sufficient to refer to the decision in MacPherson v. Debi Bhushan Lal 42 Ind. Cas. 36 : 2 P.L.J. 5(sic)0. We are not satisfied that the Legislature, by the terms of sob section (4) of section 31 of the Orissa Tenancy Act, intended to make a change in that respect. Our attention has been then invited to the case of Giridhari Naih v. Kashi Tindi 41 Ind. Cas. 128 : 2 P.L.J. 476. That was a case in which a decree had been obtained upon a mortgage of the occupancy right. Two considerations arose in that case. The first consideration was that the tenant, having previously mortgaged the occupancy right, was estopped from subsequently pleading that the occupancy right is not transferable. The second consideration is with respect to the series of decisions in the Calcutta High Court, in which a sale in execution of a mortgage decree has been held to be in substance a private sale. We are of opinion that the decision in that case is no authority for holding that an occupancy raiyat cannot object to the sale of his holding in execution of a money decree upon the ground that his rights are not transferable without the consent of the landlord. We are of opinion that the learned District Judge was right, and the appeal is dismissed with costs.