The Bengal Tenancy Act, 1885, Sections 163, 164, 165, and 168A(1)(a), provide for the sale of an entire tenure or holding for its own arrears of rent, and do not allow for the sale of a share of a judgment debtor or a demarcated portion of the tenure or holding.

( 1 ) TWO points have been urged in support of this appeal. The first is that the executing court was not right in directing that the eight annas share of judgment-debtors Nos. 4 and 5 in the tenure concerned should be put up to auction in the first instance and that "if the bidding did not liquidate the decretal dues," the entire tenure, including the other eight annas share of judgment debtors Nos. 1 to 3, should then be put to auction. The second ground urged is that the executing court was not right in holding that there must be a fresh sale proclamation under Section 163 of the Bengal Tenancy Act for the reason that there had been no bidding at the previous attempt at a sale.

( 2 ) THE facts, broadly stated, are that the appellant obtained a rent decree on January 13, 1948, against a number of judgment debtors, of whom only five need now be considered. It is stated, and there is no dispute on the point, that judgment-debtors Nos. 1 to 3 who are respondents Nos. 1 to 3 in this appeal, have already paid up a half share of the decretal dues by way of a deposit made in court in a previous execution case. In the present execution, a proclamation of sale was first issued under Section 163 of the Bengal Tenancy Act, but on the date fixed for the sale, which was to be a sale subject to encumbrances, there were no bidders. It appears that thereafter the decree-holder asked for the issue of a fresh proclamation of sale, with power to annul encumbrances, and that prayer was allowed by an order passed on November 9, 1949. Subsequently, the order under appeal was passed and the order of November 9, 1949 was set aside, because the learned Judge thought that the stage of Section 163 had not been passed, inasmuch as the tenure had not actually been put up for auction and necessarily there had been no actual bidding.

( 3 ) I shall deal with the second point first.

( 4 ) SECTION 163 of the Bengal Tenancy Act provides that in addition to the particulars, mentioned in Order XXI, Rule 66 of the Code of Civil Procedure, the proclamation of sale shall announce that the tenure or holding will first be put up to auction, subject to encumbrances, and will be sold subject to those encumbrances if the sum bid is sufficient to liquidate the amount of the decree and the costs, and that otherwise, it will, if the decree-holder so desires, be sold on a subsequent date, of which due notice will be given with power to annul all encumbrances. Section 164 of the Bengal Tenancy Act lays down the manner in which the tenure or holding is actually to be put up to sale. The next section is Section 165 which provides for the issue of a fresh sale proclamation, announcing a sale with power to avoid all encumbrances,"if the bidding for a tenure or a holding at fixed rates put up to auction under Section 164 does not reach a sum sufficient to liquidate the amount of the decree and costs. "

( 5 ) THE contention of Mr. Sen was that it was not necessary under the section that there must in all cases be some actual bidding. If it were necessary to decide this point, I should be prepared to agree with Mr. Sen, because unless it was held that a case where, in spite of all the preliminary steps having been correctly taken, no bidders appeared, was a case where Section 164 had been complied with, it might in certain cases become wholly impossible to hold any sale at all where in the first, or the second, or the third attempt, no bidders might ever appear. If it is to be held that as a matter of law the parties cannot proceed to the stage of Section 165 unless at some attempted sale, subject to encumbrances, some bidding has taken place, it is clear that in a case where there is a perfectly bona fide absence of bidders even though repeated attempts at a sale have been properly made, the property cannot be brought to sale, with power to annul encumbrances, at all.

( 6 ) MR. Das, who appears on behalf of the respondents, admitted the cogency of this consi