JUDGMENT 1. The parties to the suit out of which this appeal arises claim under two different sales. The sale under which the Plaintiff claims was a sale that took place on the 5th March 1888, in execution of a mortgage decree obtained by him on the 28th April 1887. The Defendants Nos. 2 to 5, on the other hand, claim under a sale which took place on the 7th March 1887 in execution of a decree for arrears of rent obtained by the landlord against the Defendant No. 1, Kartik Nath Saha. The mortgage executed by Kartik Nath in favour of the Plaintiff was in Bhadra 1287 corresponding to September 1880. The Plaintiff brought a suit upon his mortgage on the 5th March 1887, but before the summons in the suit was served upon the mortgagor, the Defendant No. 1, the property in question, (in respect of which the decree for arrears of rent was obtained by the landlord), was brought to sale by ah assignee of the landlord, namely, Ganga Churn Saha, on the 7th March 1887, and was purchased by Defendants Nos. 2 to 5. The question raised in the suit was, what might be the rights of the two parties concerned. There was also a question discussed in the Courts below as to whether the doctrine of lis pendens applied against the Defendants; but in the view that we adopt and which we shall presently express, that question need not be considered. As already mentioned, the decree for rent obtained by the landlord against Kartik was assigned over to Ganga Churn. The landlord's interest in the property in respect of which that rent decree was obtained was not, however, transferred to that individual; and he applied for execution of the rent decree in question. As we understand and gather from the proceedings, the application was made under the Bengal Tenancy Act, and the sale that took place in furtherance of that decree was also under the Bengal Tenancy Act; and at the sale that took place Defendants Nos. 2 to 5 purchased the property in question. Sec. 148, cl. (h) of the Bengal Tenancy Act provides:--"Notwithstanding anything contained in sec. 2 to 5 purchased the property in question. Sec. 148, cl. (h) of the Bengal Tenancy Act provides:--"Notwithstanding anything contained in sec. 232, C. P. C, an application for the execution of a decree for arrears obtained by a landlord shall not be made by an assignee of the decree unless the landlord's interest in the land has become and is vested in him'. Now, the assignment to Ganga Churn may be a perfectly good assignment, having regard to the provisions of sec. 232, C. P. C, but still the question is whether an application for the execution of the decree for rent obtained by the landlord could be made by Gunga Churn under the Bengal Tenancy Act; and whether, upon such application, a sale could take place under that Act. As already mentioned, the interest of the landlord was not vested in the assignee Gunga Churn at the time that he applied for execution of the rent decree; and it seems to us, in view of the provisions of sec. 148 of the Bengal Tenancy Act that we have quoted, that it was not competent to the Court to give effect to the application of Gunga Churn, and sell the property in respect of which the rent decree had been obtained. 2. Our attention has been called to various cases decided by this Court, but having regard to the facts of the case now before us we are disposed to think that those cases have really no application to the present case. We may, however, refer to the case of Dwarka Nath Sen v. Peari Mohan Sen 1 C. W. N. 694 (1896), decided by a Division Bench of this Court, as also the case of Karunamoy Banerji v. Surendra Nath Mukerji I.L. R. 26 Cal. 176(1898), as supporting generally the view that we have expressed. If then it was not. competent to the Court to entertain the application that was made by the assignee Gunga Churn for the execution of the rent decree obtained by the landlord, and to sell the property in respect of which that decree had been obtained, it is obvious that the sale which took place in execution of the rent decree passed no title to the Defendants. It follows from this that the Plaintiff, who had obtained a decree upon his mortgage on the 28th April 1887 against the mortgagor was entitled to bring to sale the mortgaged property; and that at the sale which took place, he acquired a good title. Upon these grounds, we think that the judgment of the Court below cannot be affirmed. The result is that this appeal is allowed. We think, however, that, in the circumstances of the case each party should bear his own costs in all the Courts.