JUDGMENT Khundkar, J. - The Petitioner and the Opposite Party No. 1 are co-sharer landlords and the Opposite Party No. 2 is the tenant of an occupancy holding under them. The landlords having each obtained an ex-parte decree for rent, the Petitioner purchased the holding in a sale held in execution of his decree which was confirmed. Opposite Party No. 1 then made an application to set aside the sale, alleging that the processes and the proclamation relating to the sale had been suppressed. On the evidence before him the learned Munsif was unable to hold that the sale proclamation had been suppressed, but he found that the notice required by sec. 148A, cl. (7) was not proved to have been served. He accordingly refused to set the sale aside, but observed that the sale was to be considered to be a sale held in execution of a money-decree. The effect of this observation would be that only the right, title and interest of the tenant passed by the sale and not the holding itself. On behalf of the Petitioner it is contended that this direction was entirely outside the scope of the proceedings and should be deleted from the Munsif's order. On behalf of the Opposite Parties a preliminary objection has been taker to the effect that the question cannot be raised in revision since an appeal lies under sec. 174 (5) of the Bengal Tenancy Act and reliance is placed on the case of Hara Chandra Das v. Bholanath Das 39 C.W.N. 567 (1935)., where it was laid down that a party in whose favour a decree had been passed might nevertheless have a right to appeal against a finding adverse to him,--the test to be applied in each particular case being whether the finding, sought to be appealed against, was one to which the rule of res judicata might be held to be applicable so as to disentitle the aggrieved party to agitate the question covered by the finding in any other proceeding. In reply Mr. Chakraborty has submitted that the observations in that case are no more than obiter in so far as the finding which the Appellant complained against was held not to be one which could operate as res judicata. He has further argued that sec. In reply Mr. Chakraborty has submitted that the observations in that case are no more than obiter in so far as the finding which the Appellant complained against was held not to be one which could operate as res judicata. He has further argued that sec. 174 (5) in terms provides for an appeal against an order setting aside or refusing to set aside an appeal and can have no application here inasmuch as the order was not one setting aside a, sale and the Petitioner is not aggrieved by the learned Munsif's refusal to set aside the sale; but is asking merely for deletion of an observation which should not have been made as it was not germane to the order and was outside the ambit of the application to set the sale aside. 2. Upon a careful consideration of the circumstances of the case and the arguments advanced, I am of opinion that the preliminary objection must be upheld. Adopting the principle expounded in the case of Hara Chandra Das v. Bholanath Das (1), which was based on some earlier decisions to which reference was made in that judgment, I find that the test of res judicata furnishes an answer to the Petitioner's contention. The finding that the sale held in execution of the Petitioner's decree operated to pass only the right, title and interest of the tenant and not to a transfer of the holding itself is one which, in my judgment, would preclude the parties from reagitating this question in other proceedings. I am of opinion that under sec. 174 (5) an appeal would lie against that portion of the order which is complained of. 3. Further, on the merits I am not. pre-pared to say that this is a case in which the order of the learned Munsif should be disturbed in revision. In my judgment the observation complained of cannot be said to have been outside the scope of the proceedings. It not being disputed that non-service of the notice required by sec. 148A (7) would have the effect of attaching to the sale the incidents of a money execution sale in which only the right, title and interest, of the tenant would pass, the enunciation of this proposition cannot be dissociated from the order refusing to set aside the sale. It not being disputed that non-service of the notice required by sec. 148A (7) would have the effect of attaching to the sale the incidents of a money execution sale in which only the right, title and interest, of the tenant would pass, the enunciation of this proposition cannot be dissociated from the order refusing to set aside the sale. One ground upon which that order could be supported is that the person applying to have the sale set aside had not suffered substantial injury and in the circumstances of this case the Opposite Party does not suffer substantial injury if the sale effects no more than the transfer of the tenant's interest. The Rule must, therefore, be discharged with costs,--hearing-fee one gold mohur.