A tenancy right that is not transferable under a special statute cannot be attached or sold in execution of a decree.

( 1 ) THIS is a revisional application at the instance of the judgment debtor in Commercial Execution Case No. 142/79 of the 4th Bench of the City Civil Court, Calcutta. The order impugned is the one dated July 31, 1982, passed by the Id. Judge in Misc. Case No. 392/82. The decree-holder opposite party in executing a money decree against the judgment-debtor prayed for sale of tenancy right of the judgment-debtor in a shop and a godown. Such tenancy being governed by the provisions of the West Bengal Premises Tenancy Act (hereinafter referred to as the said Act), an objection was raised on behalf of the judgment-debtor under section 47 of the Code of Civil Procedure to the effect that such a tenancy not being transferable, cannot be put to sale in execution of the decree. That objection was overruled by the Id. Judge, when relying on a decision of this Court in the case of Dulaldas Mullick and Ors vs. Ganesh Das Damani and Ors. , AIR 1957 Calcutta 280 when it was held that such a tenancy being a part of the goodwill of the judgment-debtor's business, can be sold in execution of the decree. The said decision is being challenged now before us in the present revisional application.

( 2 ) MR. Banerjee appearing in support of this revisional application has contended that under the special provisions of the said Act the tenant's right to transfer or assign the tenancy or any part of it being barred by law, the executing court acted beyond jurisdiction in directing sale of such a tenancy contrary to law. Reliance is placed by Mr. Banerjee on the provisions of section 14 (1) and section 30 (3) of the said Act.

( 3 ) MR. Mitra appearing on behalf of the decree-holder has contended in support of the order passed by the Id. Judge that the amended provision of section 60 (1) of the Code of Civil Procedure would show that such a tenancy in respect of a non-residential building can be attached and/or sold in execution of a decree. Referring to clause (kc) of section 60 (1) of the Code, it has been contended by Mr. Mitra when the interest of a lessee of a residential building Governed by the rent restriction laws alone has been exempted from attachment and sale, it establishes by necessary implication that the interest of a lessee of a non-residential building is not so exempted and as such, can be attached or sold in execution of a decree.

( 4 ) WE have carefully considered the contention put forward by Mr. Mitra. It appears to us that the learned Judge in the executing court in coming to his conclusion also relied upon the aforesaid clause (kc) of section 60 (1) of the Code and drew an implication as suggested by Mr. Mitra. In our considered opinion, however, such an implication does not necessarily follow in every case. We find there is a fallacy in the process of reasonings. Sub-section (1) of section 60 of the Code provides what can be attached and/or sold in execution of a decree. Having provided as such, the legislature provided certain exemptions set out in the different clauses of the proviso. Hence, the basic requirement of section 60 (1) of the Code has to be fulfilled before the property in question can be attached or sold in execution of a decree. The exemptions contemplate that they would otherwise be liable to be attached and/or sold under sub-section (1) but for the specific protection given by the exemption clauses. But a property, which does not come within the purview of section 60 (1) of the Code, cannot be attached and/or sold not because it is exempted but because it is not capable of being attached or sold in law. Now one of the basic requirements of section 60 (1) of the Code is that the saleable property must belong to the judgment-debtor and that ?he has a disposing power which he may exercise for his own benefit. ? Here in the present case the judgment-debtor's right to transfer or assign the tenancy being barred by section 14 (1) of the said Act, he has no disposing power which he can ex