JUDGMENT

Ghulam Hasan, J - The question arising in this appeal is whether the execution application of the decree-holders, respondents against the immovable property of the judgment-debtor, appellant in execution of a decree for arrears of rent was competent. It appears that the respondents obtained a decree for arrears of rent on 17th September 1934 from the Court of the Sub-Divisional Officer of Partabgarh against 18 persons including the appellant. On 5th December 1934, the decree holders-respondents took out execution against six judgment-debtors including the appellant out of the entire set of judgment-debtors and attached moveables belonging to the judgment-debtors other than the appellant. Rupees 81 were paid by one of the judgment-debtors other than the appellant and the attachment was withdrawn. On 18th 'September 1937, when the period of three years' limitation was about to expire, a second execution application was filed against the appellant alone. This application sought the sale of the mortgagee rights in certain plots possessed by the appellant. The appellant objected that the application for execution against the immovable property was not maintainable by reason of the provisions of Section 151, Oudh Rent Act. The learned Assistant Collector upheld the objection and rejected the execution application, while the learned District Judge in appeal reversed the decision and allowed the appeal.

2. The learned District Judge held that the case was covered by a decision in Sheo Baran Singh v. Ram Kali Kunwar, A.I.R. Oudh 145 where it was held by a single Judge of this Court that equity demanded that the attachment of the immovable property should be maintained and the question whether there was any moveable property of the judgment-debtor available for satisfaction of the decree should be gone into. In case no such moveable property was available the immovable property attached could be sold. But in case such moveable property was avail, able the decree-holder should be required to enforce his decree, if possible, against such moveable property. The learned District Judge sought to distinguish a Bench decision in Darshan Lal v. Munnoo Singh, A.I.R. 1937 Oudh 258 on the ground that in the latter case there was a question whether an amendment of the original application seeking attachment of the moveable and immovable property seriatim should be allowed or not. It is contended by learned Counsel for the appellant that under the provisions of Section 296, U.P. Tenancy Act (17 of 1939) there is no corresponding provision to Section 151 of the old Tenancy Act, and consequently under the mandatory provisions of that section the proceedings for the execution of the decree should be quashed. After omitting that portion of Section 296, which is not required for the purpose of the present ease, I reproduce below the abridged portion of Section 296 material to the case:

A decree under any of the provisions of the Agra Tenancy Act, 1926, or the Oudh Rent Act, 1886, which has not been satisfied in full at the commencement of this Act, shall be executed in accordance with the corresponding provision of this Act and if there is no such corresponding provision, the proceedings relating to such decree shall be quashed.

3. Under Section 151, Oudh Rent Act (22 of 1886) it is laid down that if the decree is for money, a process in execution shall not issue against the immovable property of the judgment-debtor, other than for attachment of that property, unless satisfaction of the decree cannot be obtained against his moveable property. In other words, unless the moveable property is exhausted the immovable property is not available for satisfaction of the decree, and the Court is enjoined not to issue a process in execution against the immovable property unless the moveable property was exhausted. It is argued on behalf of the appellant that there is no provision in the new Tenancy Act corresponding to Section 151 of the old Act and, ther