JUDGMENT

Desai, J. - The following question has been referred to this Bench for answer:

Where a decree for recovery of arrears of rent in respect of a period prior to the date of vesting under the UP ZA and LR Act has been passed in favour of a decree-holder, can the decree holder execute such decree for arrears of rent by sale of the sirdari rights of the judgment debtor after the coming into force of the UP ZA and LR Act?

2. The material facts are these. The opposite parties obtained in 1950 a decree for arrears of rent amounting to more than Rs. 1,000 u/s 148 of the UP Tenancy Act against the Applicants, who were ex proprietary tenants. In February 1951, the opposite parties applied for execution of the decree by sale of the ex-proprietary rights of the Applicants as permitted by Section 251 of the UP Tenancy Act. While the execution application was pending the UP ZA and LR Act was enacted and the UP Tenancy Act was repealed. The former Act came into force on 1-7-1952. Under its provisions the Applicants became Sirdars in place of exproprietary tenants of the holding in dispute and thereupon they meet an objection in the executing court to the maintainability of the application for execution of the decree by sale of their Sirdari rights in the holding. The objection having been dismissed by the executing court and the Civil judge sitting on appeal, the Applicants filed this revision application. Our brother Beg, before whom the revision came up for disposal, considered that the question reproduced above is an important question likely to arise in many cases and referred it to a Bench. Though the question is in general words, we would answer it only with reference to the particular facts of this case, e.g The facts that the decree for arrears of rent was passed against an exproprietary tenant prior to the date of vesting under the ZA and LR Act and an application for execution of it by sale of the exproprietary right's in the holding was made before the date of vesting.

3. The relevant law in force under the UP Tenancy Act was as follows. Except as otherwise provided by the Act an arrear of rent was recoverable "by suit, or by notice" in accordance with the provisions of the Act; see Section 148. Section 147 prohibited the execution of a decree for arrears of rent by the arrest or detention of the tenant. Certain arrears of rent were recoverable as arrears of land revenue, vide Ss 153 and 154. No tenant could be ejected from his holding otherwise than in accordance with the provisions of the Act; see Section 157. A landholder was permitted by Section 163 to apply to the tahsildar for the issue of a notice to an exproprietary tenant for payment of arrears of rent due by him and in default for his ejectment from his holding; u/s 165 if he did not pay the arrears within the time fixed by the tahsildar, he was to be ordered to be ejected from the holding. If a decree for arrears of rent passed against an exproprietary tenant was not completely satisfied within one year, the landholder was given a right by Section 168 to apply to the court passing the decree for a notice to the tenant for payment of the decretal amount and for his ejectment in default. Section 158 laid down that when a tenant was ejected from his holding "in execution of a decree or order of ejectment for arrears of rent, all arrears of rent, whether decreed or not, due in its (sic) of such holding on the date of the delivery of possession shall be deemed to have been paid." Every decree or order for ejectment was to be enforced in accordance with the provisions of the Code of Criminal Procedure vide Section 181. Section 251 laid down that the interest of an exproprietary tenant could be sold in execution of a decree for arrears of the "sent of such holding" and unless the interest was purchased by the landholder thereof, the purchaser was to have the same interest, end was to be subject to the same liabilities (sic) respect of it as the tenant. Instead of selling th