Pandey, J.

This appeal under the Letters Patent is directed against an affirming order of the learned single Judge by which he dismissed an application of Kishan Chand Sharma, judgment-debtor No. 28, under section 47 of the Code of Civil Procedure raising the following two contentions :

(i) The final decree for sale is no longer executable.

(ii) In any event, the occupancy lands of Kishan Chand Sharma are not liable to be sold in execution of the decree.

The facts of this case in so far as they are necessary for disposal of this appeal may be briefly stated. By two deeds dated 4th September 1924 and 30th June 1927, Chaturbhuj and Sewaram, the then proprietors of village Jarwans, created two successive simple mortgages in favour of Pyarelal, Ramlal and Motilal. Subsequently, contrary to the express covenant in the second mortgage deed, the mortgagors alienated Kkudkasht and chhota ghas lands of the village in favour of numerous persons (judgment-debtors Nos. 3 to 36). Kishan Chand Sharma obtained by a registered patta dated 22nd August 1936 a lease for chhota ghas plots khasra Nos. 3/1, 5 and 7/1, area 130 acres, rental, Rs. 65, for a consideration of Rs. 480 and thereby became an occupancy tenant of the plots. Motilal and the successors-in-interest of the other mortgagees filed Civil Suit No. 5-A of 1943 on the foot of the two mortgages and secured on 1st April 1946 a preliminary decree for sale against the mortgagors and their aliened. Kishan Chand Sharma filed First Appeal No. 59 of 1946 against the decree and contended inter alia that, in view of section 43 of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (hereinafter called the Abolition Act), his occupancy lands could not be sold in execution of the decree. That contention was not accepted and the appeal was dismissed on 19th January 1954.

The preliminary decree for sale was made final on 20th January 1950. Thereafter the decree-holders filed an execution application and proceeded to recover the decretal amount by sale of the property covered by the decree.

When the Abolition Act came into force, the decree-holders and the judgment-debtors made separate applications for settlement of the debt under section 19 of that Act. By a common order dated 22nd March 1952, the decretal amount was reduced from Rs. 48,891-3-0 to Rs. 39,615, the amount of compensation Rs. 6,594-6-0 was directed to be paid to the creditors and the remaining amount of Rs. 33,020-10-0 was declared to be a charge on the property specified in the order.

On 4th December 1952, the decree-holders made an application to the executing Court for recovery of the decretal debt as reduced by the Claims Officer.

On 26th June 1953, Kishan Chand Sharma filed the application, out of which this appeal arises, raising the two points mentioned in the opening paragraph of this order. The Court of first instance and the learned single Judge repelled his contentions.

In regard to the first point, the precise contention is this. Since the debt due to the secured creditors was not an excluded debt, they had to submit their claim to the Claims Officer for determination under Chapter IV of the Abolition Act. Further, after the Claims Officer passed an order under section 27 of that Act, the only remedy available to them in respect of the amount remaining unpaid, as declared, was to apply for a preliminary decree for sale under section 28 of the Act. While the Court of first instance held that Kishan Chand Sharma was not entitled to the benefit of section 28, the learned single Judge took the view that since a final decree for sale had already been passed, there could not be two decrees and it was unnecessary for the secured creditors to apply afresh for a preliminary decree. As we would show presently, this view is not correct.

In the instant case, the mortgagors transferred to Kishan Chand Sharma a part of the property which was subject to the mortgage burden. That being so, as a tran