JUDGMENT 1. This is a second appeal by the Plaintiffs in a suit for declaration that an ex parte decree for rent obtained by Defendants Nos. 1 and 2 against Defendants Nos. 3 to 6 in Rent Suit No. 1554 of 1932 in the third Court of the Munsif of Bogra, and the resultant sale of the holding in execution, are not binding upon the Plaintiffs. A preliminary objection was taken that the appeal does not lie, since it had already abated against the Respondent No. 12. The Plaintiffs' case was that they had purchased portions of the holding in the benami of the Respondent No. 12 and so the latter was made a party. No relief, however, was claimed as against Respondent No. 12, who also did not put in an appearance. In these circumstances, it does not seem to us that the present appeal is incompetent by reason of its having abated as against the Respondent No. 12. 2. Coming to the merits, the relevant facts are shortly these. There are three sets of landlords, namely, the Defendant No. 1, who is the owner of one-sixth; Defendant No. 2, who is the owner of two-thirds; and Defendants Nos. 7 to 11, who are the owners of one-sixth of the holding. Rent suit No. 1554 of 1932 was originally brought by Defendant No. 1, impleading the other co-sharers as Defendants. Defendant No. 2, however, subsequently joined as co-Plaintiffs, and the suit was decreed in favour of Defendants Nos. 1 and 2, who also at an auction-sale in execution of the decree purchased the holding. The Plaintiffs acquired the greater portion of the holding partly by auction-purchase and partly by private purchase. The transactions began from 1923 and ended in 1929-- the last named being an auction-purchase in execution. In respect of that purchase it has been found that the necessary transfer fees under sec. 26E of the Bengal Tenancy Act were paid and accepted by Defendant No. 2. All the previous transfers occurred before the amendment of the Bengal Tenancy Act, and as a result of these purchases the Plaintiffs got their names mutated in the sheristas of Defendants Nos. 7 to 11. The only landlord who did not recognise the Plaintiffs was Defendant No. 1. All the previous transfers occurred before the amendment of the Bengal Tenancy Act, and as a result of these purchases the Plaintiffs got their names mutated in the sheristas of Defendants Nos. 7 to 11. The only landlord who did not recognise the Plaintiffs was Defendant No. 1. The learned Munsif held that the decree in Rent Suit No. 1554 of 1932 was a money decree, but, that the Plaintiffs were not entitled to any relief, because they challenged the sale on the ground of fraud which they failed to prove. The Plaintiffs appealed and the learned Subordinate Judge held that the decree was a rent decree, although the landlord Defendants had not preferred any cross-objection. The question of fraud was not further raised. On the finding that the decree was a rent decree the learned Subordinate Judge dismissed the suit. Hence this second appeal. 3. The question turns upon whether the tenants, who were made Defendants in Rent Suit No. 1554 of 1932, represented the entire body of tenants. The Plaintiffs' case is that they did not, on the ground that the Plaintiffs were not impleaded. There is no doubt that the Plaintiffs had been recognised by the five-sixths landlords and that the Defendant No. 1 did not recognise the Plaintiffs' purchase. But, on the other hand, the Defendant No. 2 was a co-Plaintiff with him in the rent suit. 4. Our attention has been drawn to the case of Nawab Khaje Habibulla v. Shek Baser 24 C.W.N. 152 (Notes) (1920). That was a case in which the 8 annas landlord had recognised the purchase of a non-transferable occupancy holding by the Defendant. The remaining 8 annas landlord, who had not sold their interest, brought a suit for rent against the original tenants, impleading his co-sharer landlords as pro forma Defendants. The latter were after words transferred to the category of Plaintiffs in the rent suit. The suit was decreed and the Plaintiffs purchased the holding in execution. The original Plaintiffs then brought this suit for recovery of possession of their 8 annas share. It was held by this Court that the decree obtained by the Plaintiffs and their co-sharers had not the effect of a rent decree, and that only the right, title and interest of the original tenant passed by this execution sale. The learned Subordinate Judge refers to this case as being under the old Act. It was held by this Court that the decree obtained by the Plaintiffs and their co-sharers had not the effect of a rent decree, and that only the right, title and interest of the original tenant passed by this execution sale. The learned Subordinate Judge refers to this case as being under the old Act. But even under the present Act, which covers Rent Suit No. 1554 of 1932, the position of the Plaintiffs is stronger by virtue of the statutory provision of sec. 26B that the holding of an occupancy raiyat is transferable. Therefore, the question of non-recognition by the landlords does not really arise and, as a matter of fact, in the present case the landlords had recognised the Plaintiffs' purchase. Thus the Plaintiffs are entitled to come in under cls. (iii) and (iv) of sub-sec. (3) of sec. 146A of the Bengal Tenancy Act. That being so, the omission to implead them in the rent suit must operate against the landlords, and it must be held that the Defendants in that suit did not represent the entire body of tenants: Amulya Charan Misra v. Pran Krishna Adhikary 42 C.W.N. 755 (1938). Therefore, the decree obtained in the course of the rent suit must be held to be a money decree and the auction-sale in execution thereof only passed the right, title and interest of the original tenants. The learned Munsif also took this view but, at the same time, he decided not to give the Plaintiffs a decree. He held that under sec. 42 of the Specific Relief Act the Court's discretion ought to be exercised against the Plaintiffs on the ground that although they had approached the zemindars in order to obtain settlement, they did not take the other course of getting the auction-sale set aside by making the deposit. The learned Subordinate Judge, however, points out that if the sale was a money sale, then there was no reason why the Plaintiffs could not get the declaration prayed for; merely because they did not choose or could not pay the decretal dues. We think this is the right view. Having failed to come to terms with the landlords it was open to the Plaintiffs to stand on their rights, and there is no reason why the decree as asked for should not be granted. 5. We think this is the right view. Having failed to come to terms with the landlords it was open to the Plaintiffs to stand on their rights, and there is no reason why the decree as asked for should not be granted. 5. The appeal is accordingly allowed, the decree of the lower Appellate Court is set aside, the Plaintiffs will get a declaration to the effect that the ex parte decree for rent obtained by Defendants Nos. 1 and 2 against the Defendants Nos. 3 to 6 on 3rd November, 1932, in Rent Suit No. 1554 of 1932, in the third Court of the Munsif of Bogra, and the sale of the holding in arrears in execution of the aforesaid decree, are not binding on the Plaintiffs. The Plaintiffs Appellants will get the rusts of this Court from the Defendant No. 2 Respondent, and in the Courts below from the Defendants Nos. 1 and 2.