JUDGMENT G.N. Das, J. - The judgment-debt Midnapore Zemindary Company appeals against the decision of Mr. R.K. Datta Gupta learned Subordinate Judge, Nadia whereby a petition of objection filed by the Appellant to the execution of a decree was disallowed. Shortly stated the facts are that in 1865 the predecessors-in-interest of the Respondents granted a patni potta, (Ex.1) in favour of the predecessor-in-interest of the Appellant in respect of certain lands within Touzi No. 523 of the Murshidabad Collectorate at an annual rent of Rs. 5,483 as. 5 pie, I only, one of the terms runs as follows:-- If you make default in payment of the said settled rent or any kist thereof, you shall pay interest for default of lift at the rate of Re. 1 per cent per month, and we shall realise the arrears of rent with interest and cess be auction sale of the said patni tulak upon making application and instituting, proceedings according to the provisions of Regulation VIII of 1819 or of any other law for realisation of rent which is now in force or may come into force in future (torn). If (torn) amount be not realised thereby, then we shall realise the balance (sic) by auction sale of your other movable and immovable properties. 2. Certain lands accreted to the said patni taluk. The accreted lands were formed into a Diarah Touzi No. 3653 and a gameokarari tenure for a term of 15 years, vis., from 1st April, 1921, to 31st March, 1936, (Matter are not Clear Page No. 737) (3) and the clear implication is that the view taken in these cases is accepted. Mitter, J., who was a party to the decision of the Special Bench, understood the decision of Special Bench in this way See Pratul Chandra Ghosh v. Naresh Chandra Bose 50 C.W.N. 655 (1946). Mr. Gupta relies strongly on the following passage at p. 836 in the case of Sudhir Krishna Ghosh v. Satish Chandra Hui 48 C.W.N. 835 (1944). Mitter, J., who was a party to the decision of the Special Bench, understood the decision of Special Bench in this way See Pratul Chandra Ghosh v. Naresh Chandra Bose 50 C.W.N. 655 (1946). Mr. Gupta relies strongly on the following passage at p. 836 in the case of Sudhir Krishna Ghosh v. Satish Chandra Hui 48 C.W.N. 835 (1944). Where the defaulting tenure is liable to be sold in execution of the decree and is not actually sold the tenant has no farther liability as the decree becomes satisfied and the question of execution of the decree does not arise, Where, as in the present case, the defaulting tenure is not available to the decree-holder and can not be sold in execution of the decree, Section 168 A(1)(b) does not come into operation, the personal liability of the judgment-debtor under the decree continues and there is no reason why the decretal amount can not be realised by modes of execution other than the attachment and sale of the judgment-debtor's properties. This observation in the judgment of the Special Bench was not intended to forbid any other made of execution where the tenure was still unsold. Such a view would be opposed to the previous portion of the judgment where the two previous decisions of this Court are presumably referred to with approval. The contention of Mr. Gupta would have the effect of putting different constructions on the section in different sets of circumstances. The contention is also not borne out by the express words of the section. In the case of Anil Kumar Bose v. Roy Biman Behari Mitra 48 C.W.N. 344 (1944) the tenure was available for sale, nevertheless execution of a decree for rent by attachment of a decree obtained by the tenant judgment-debtor was allowed. The principle was thus stated by Mukherjea, J., at p. 345. The section is an encroachment upon the rights which the landlord decree-holder had under the ordinary law and certainly it can not be extended beyond what is warranted by the actual language of the Section. In this view, we are not prepared to accept the above contention of Mr. Gupta. Mr. Gupta next contends that on a proper interpretation of the term in the lease already quoted the decree-holder is limited to execution of his decree in the first instance by a sale of the defaulting tenure. In this view, we are not prepared to accept the above contention of Mr. Gupta. Mr. Gupta next contends that on a proper interpretation of the term in the lease already quoted the decree-holder is limited to execution of his decree in the first instance by a sale of the defaulting tenure. This interpretation is not correct. The clause referred to is an enabling one and merely sets forth the right of the landlord to execute his decree in the various ways mentioned therein. It is not restrictive of his powers under the law to choose his own mode of execution. In this view, it is not necessary to express any opinion on the question whether the terms of the potta Ex. 1 would be attracted to the accreted tenure in default and govern its incidents. The last contention of Mr. Gupta relates to the propriety of the mode of execution by the appointment of a receiver in the facts of the present case. The appointment of a receiver in execution is not a matter of right, and a proper case must be made out to justify the exercise by the Court of its discretion to make the appointment. It is a form of equitable relief and is granted on the ground that there is no effective remedy by execution at law. It is, however, not always necessary that legal execution should be exhausted before an appointment of a receiver by way of equitable execution can be obtained; per C.C. Ghose, J., in Promathanath Malia v. H.V. Low & Co. ILR 57 Cal. 964 at p. 974 (1925). It is, therefore, necessary to consider the relevant facts. The defaulting tenure has been in the possession of the Appellant since its formation. The best evidence of the income of the tenure would be the collection papers. These are in the custody of the Appellant but have not been produced. The unchallenged statement of the Respondents' witness No. 1, Heramba Chandra Majumdar, is that the value of the tenure would be about Rs. 4,000 or Rs. 5,000. The decretal dues amount to Rs. 17,994, as 10. The tenure is situate in a temporarily settled estate and its rent is liable to be re-assessed at the periodical settlements of land revenue though subject to the result of a suit under sec. 104H, Bengal Tenancy Act. 4,000 or Rs. 5,000. The decretal dues amount to Rs. 17,994, as 10. The tenure is situate in a temporarily settled estate and its rent is liable to be re-assessed at the periodical settlements of land revenue though subject to the result of a suit under sec. 104H, Bengal Tenancy Act. It is situate in a diara mahal and is liable to fluctuation consequent on the changes in the course of the river. An execution sale of the tenure is likely to fetch a small portion of the decretal dues. In these circumstances, it is difficult to say that the decree-holder should be compelled to pursue the doubtful and inadequate remedy of legal execution by a sale of the tenure before he can be allowed to proceed by way of equitable execution by appointment of a receiver. It cannot be said that the exercise of its discretion by the trial Court necessitates our interference in appeal. All the contentions raised by Mr. Gupta fail and this appeal must be dismissed with costs. Mukherjea, J. I agree.