1. We are invited in this Rule to set aside an order of the Court of first instance, affirmed on appeal by the Subordinate. Judge, by which an application presented by the Petitioners under r. 90 of Or. 21 of the CPC has been rejected on the ground that they had no locus standi in the matter. The circumstances under which the application was made are not disputed, and may be briefly recited. The landlords obtained a decree for rent against the recorded tenant of a nontransferable occupancy holding and had it sold by auction on the 14th September 1911. The Petitioners had previously purchased a portion of the holding and had also taken a mortgage of another portion : the two portions thus transferred to the Petitioners do not cover the entire holding. The Petitioner applied to have the sale set aside on the grounds mentioned in r. 90 of Or. 21. To this, the objection was taken that they were not competent to make the application inasmuch as they were not persons whose interests were affected by the sale. The Court of first instance gave effect to this objection on the strength of the decision of this Court in the case of Prosunno Kumar v. Barna Charan 18, C. W. N. 652(1909), and dismissed ''the application. On appeal by the Applicants, the Subordinate Judge has confirmed the order of the original Court. He has held that there is a conflict of judicial opinion upon this question and that he is bound to follow the latest decision in the reports. This order is now assailed before us and it is argued that the erroneous view taken by the Court of first instance as to the true scope of r. 90 of Or. 21 has led that Court to refuse to exercise a jurisdiction vested in it by law. In our opinion there is no room for serious controversy that the order of the Court of first instance as cnfirmed by the lower Appellate Court is erroneous and must be set aside. The most serious mistake into which the Court of first instance has fallen is that there is diversity of judicial opinion upon this question. The cases have been analysed before us and they show that there is no decision which supports the view taken by the Courts below, whereas there are several decisions which support the contention of the ''Petitioners. No useful purpose could be served by a detailed analysis of the judicial decisions mentioned by the Subordinate Judge, as they were decided with reference to statutory provisions which have no application to the case before us. We may state briefly that the case of Azgar Ali v. Asaboddin 9 C W. N. 134 (1904). indicates that in circumstances not distinguishable from those of the present case, it was held that under sec. 311 of the Code of 1882, a transferee of a portion of a non-transferable occupancy holding was entitled to apply for reversal of a sale in execution of a decree for arrears of rent obtained by the entire body of landlords. In three other cases, namely, Kunja Behari Mandal v. Sambhu Chandra Roy (3), Benodini Dasi v. Peary Mohan Haldar ) 8 C. W.N, 55(1903). and Omar Alt v. Basiruddin Ahmad 7 C. L. J. 282 (1908), the right of such a purchaser to apply to have the sale set aside under sec. 310A of the Code of 1882 was affirmed. In two other cases [Jugalmohini Dasi v. Srinath Chatterjee 12 C. L. J. 609 (1910), and Tarakdas Pal Ghaudhury v. Harish Ghandra Banerjee 17 C. W. N. 163(1912)], the right of such a transferee to make an application under sub-sec. 8 C. W. N. 232 (1903) of sec. 170 of the Bengal Tenancy Act was upheld. In two other decisions [Barhamdeo Singh v. Ram-down Singh 16 C.L, J. 139 (1908), and Gadadhar Ghose v. The Midnapore Zemindary Go. 16 C. L. J. 141 (1908)], the position was supported that a transferee of this description was entitled to maintain a suit to set aside a fraudulent decree which, if not set aside, might be executed and might prejudice his position. The Subordinate Judge was undoubtedly in error when he held that some of the cases mentioned did not support the contention of the Petitioners. If the present case had arisen under the Code of 1882, there is no question that the decisions to which we have referred would have supported the contention of the Petitioners. The Subordinate Judge was equally in error when he held that there are three later decisions which negative the contention of the Petitioners, namely, Nissa Bibi v. Radha Kishore 11 C. W N. 312 (1906), Prosunno Kumar v. Bama Gharan 13 C. W, N. 652(1909) and Nalini Behari Roy v. Fulmani Dassi (16 C. W. N. 421 (1912); he overlooked the very material circumstance that in each of these cases, the entire holding had been transferred. In the first case, it was held that the transferee of a transferable occupancy holding was the representative-in-interest of the tenant, and. was entitled to apply under secs. 244 and 311 of the CPC of 1882 to have the sale set aside. There is a dictum in the judgment to the effect that if the holding were non-transferable, the transferee could not be treated as a representative. This view was followed in the case of Prosunno Kumar v. Bama Charan 13 C. W. N. 652(l909), while in the case of Nalini Behari Roy v. Fulmani Dassi 16 C. W. N, 421 (1912) the question related to the position of a transferee of an entire nontransferable holding under sub-sec. (3) of sec. 170 of the Bengal Tenancy Act. The distinction between the position of a transferee of a portion of a holding and of an entire holding is fundamental and has been overlooked by the Courts below. If a tenant has transferred his entire holding which is non-transferable and has surrendered possession to the transferee, he has in essence abandoned the holding. The ''tenancy has terminated, and the landlord has become entitled to re-enter. On the oilier hand, if a portion only of the holding has been transferred, even though the holding be non-transferable, there is no forfeiture. The tenancy still subsists, and the landlord is entitled to look to his tenant for payment of rent : Kabil Sardar v. Chandra Nath Nag Chaudhury I. L. R. 20 Cal. 500 (1892) (13) I.C.W.N. 160 (1894), Durga Prosad Sen v. Dowla Gazee (13) and Gazaffer Hossain v. E. Dalglish I C. W. N. 162 (l896). Id is plain, therefore, that if the Code of 1882 applied to the present case, as the Subordinate Judge assumed, that it did the Petitioners would be entitled, upon elementary principles as also on well-established authorities, to maintain the application under sec. 311 of the Code of Civil Procedure. But the Subordinate Judge has overlooked that by the legislation of 1908 a fundamental alteration has been made in the law. In sec. 311 of the Code of 1882 it was provided that the decree-holder, or any person whose immoveable property has been sold in execution, may apply to the Court to set aside the sale on the ground of material irregularity in publishing or conducting it. It was ruled by a Full Bench of this Court in the case of Pareshnath v. Nabogopal ) I. L.R.29 Cal 1:.C 5 C. W. N. 821 (1901) with reference to sec. 31.0A that the expression " any person whose immoveable property is sold " includes every person who has an interest in the property whether qualified, partial, or absolute, provided such interest is affected by the sale. In the present Code, r. 90 provides that where immoveable property has been sold in execution of a decree, the decree-holder or any person entitled to share in a rateable distribution, of assets or. whose interests are affected by the sale may: apply to the Court to set aside the sale on the ground of material irregularity or fraud in publishing or conducting it. If we contrast this with the language used in r. 89, we find that there is remarkable variance between the two rules.
2. R. 89 contemplates an application by persons either owning the property which has been sold in execution or holding an interest therein by virtue of a title acquired before such sale. It is improbable that this divergence in language is merely accidental. The expression " a person whose interests are affected by the sale " has obviously a wider. import. than the; expression '''' a person holding an interest in the property sold ". It is not difficult to imagine cases in which the interests of a person may be affected by an execution sale, though it may be difficult to maintain that he has an interest in the property sold. Under these circumstances, we are of opinion that the rule formulated in r. 90 of Or. 21, of the Code of 1908, has a wider scope, and is of a more comprehensive character than the rule laid down in sec. 311 of the Code of 1882, and that the present case falls within the scope of r. 90. The result is that this Rule is made absolute and the orders of the Courts below set aside. The case will be remitted to the Court of first instance for investigation on the merits. The Petitioners are entitled to their costs throughout the present proceedings. We assess the hearing fee in this Court at three gold mohurs.
