Judgment Imam, J. 1. This is an appeal under the Letters Patent by the plaintiff against the decision of Narayan, J. who affirmed the decision of the Additional District Judge of Purnea. The plaintiff had instituted his suit for recovery of possession of a piece of raiyati land after a declaration that the shikmi interest with regard to it stands annulled. There had been a decree for rent and in execution of that decree the plaintiff was the auction-purchaser and he purchased on 11-3-1942, the occupancy holding recorded in the Survey as khata No. 45. This khata contains two shikmi khatas Nos. 41 and 42. For the present litigation we are concerned with khata No. 41 only. Subsequent to the sale the plaintiff took steps under Sec.137, Bihar Tenancy Act for the annulment of the shikmi interest and notice under that section was served upon Musam-mat Rudia, the defendant. She, however, did not give up possession of the land in suit, namely, 4.34 acres of land. The Munsif decreed the suit whereas the Additional District Judge in appeal dismissed it. 2. The principal question which was argued before the Additional District Judge was that in view of the second proviso to Sec.162A, Bihar Tenancy Act the procedure adopted by the plaintiff under Sec.167 of the Act was of no avail to him and that portion of the holding which concerned the shikmi interest of the defendant could not have been sold and the defendant was not in the least affected by the sale which took place. The Additional District Judge was of the opinion. that having regard to the second proviso to Sec.162A, Bihar Tenancy Act the court had no jurisdiction to sell that portion of the holding which concerned the shikmi interest of the defendant. Before the Additional District Judge an order-sheet of the executing court was produced and the Additional District Judge was prepared to make a remand to the court below to give an opportunity to the parties to produce further evidence on the point arising out of the order sheet. But it appeared that the pleader for the plaintiff was not prepared to accept the suggestion of the Judge. Finally the Additional District Judge permitted the order sheet to be taken in as additional evidence under Order 41, Rule 27, and marked the copy of the order sheet as Ex. But it appeared that the pleader for the plaintiff was not prepared to accept the suggestion of the Judge. Finally the Additional District Judge permitted the order sheet to be taken in as additional evidence under Order 41, Rule 27, and marked the copy of the order sheet as Ex. B. This order sheet showed that the executing court did not at all apply its mind to the consideration of the question whether the sale of that portion of the holding which was the shikmi khata No. 41 should take place. Had the executing court done so, it would have in all likelihood excluded that portion from being sold as the decree could have been satisfied without such sale. This view of the Additional District Judge was approved by Narayan J. 3. The second proviso to Sec.162A of the Act reads as follows : "Provided further that if there is any incum-brance of any portion of such holding (created before the date of the institution of the suit in which the decree was passed), the Court shall not order such portion to be sold unless in the opinion of the Court the decree cannot be satisfied without the sale of such portion." As I read these words the plain meaning of the statute is that where there is an incumbrance on any portion of a holding the court shall not order such portion to be sold unless in its opinion the decree cannot be satisfied without the sale of such portion. The provision is mandatory. The only occasion upon which a court would be justified in selling such a portion would be when it was of the opinion that the decree could not be satisfied without the sale of such portion. The provision is mandatory. The only occasion upon which a court would be justified in selling such a portion would be when it was of the opinion that the decree could not be satisfied without the sale of such portion. Under Sec. 48A of the Act it is provided that "Every person who, for a period of twelve years, whether wholly or partly before or after the commencement of the Bihar Tenancy (Amendment) Act, 1938, has continuously held land as an under-raiyat in any village, whether under a lease or otherwise, shall be deemed to have acquired, on the expiration of that period, a right of occupancy in the land which he has so held for the said period: Provided that the interest of an under-raiyat in any land in which he has acquired a right of occupancy under this section shall not be deemed to be a protected interest under Clause (d) of Sec.160." 4. It seems to me that under Sec. 48A an under-raiyat was enabled to acquire rights of occupancy but would not be regarded as possessing a protected interest, that is to say, the under-raiyat was given an improved position under the tenancy law but not to the same degree as was given to a person who possessed a protected interest. If that is the real. meaning of Sec. 48A, the second proviso to Sec.162A can be well understood, namely, that the statute gave protection to an under-raiyat to a certain extent, namely, that the portion of the holding which concerned him shall not be sold unless the Court was of the opinion that without its sale the decree could not be satisfied. Mr. Huda, however, strenuously argued that in view of what was said in the case of --- Baleshwar V/s. Ramranvijaya Prasad Singh, AIR 1947 Pat 461 (SB) (A), the second proviso to Sec.162A was not mandatory. In the aforesaid case this court was considering the provisions of Sec.163A of the Act. Mr. Huda, however, strenuously argued that in view of what was said in the case of --- Baleshwar V/s. Ramranvijaya Prasad Singh, AIR 1947 Pat 461 (SB) (A), the second proviso to Sec.162A was not mandatory. In the aforesaid case this court was considering the provisions of Sec.163A of the Act. For myself I think it is generally dangerous to make arguments by way of analogy, and the case cited can be distinguished on the ground that the majority of the Judges were of the opinion that the sale held in contravention of Section 163A was not void but voidable because the provisions of Sec.163A were essentially in favour of judgment-debtors and a judgment-debtor could waive his right to the protection afforded, and in the particular case which their Lordships were deciding. Manohar Lall J. clearly indicated that the judgment-debtors had impliedly waived the protection available to them under Sec.163A. 5. In the present case the shikmidar was not a party to the execution proceedings and ignored the notice under Sec.167 of the Act. In order to dispossess him the plaintiff brought the present suit and the attitude of the defendant shikmidar is that he, being in possession, cannot be legally ejected because the provisions of Sec.162 of the Act had not been complied with. That portion of the holding which concerned the shikmi interest under the statute could not be sold. No court had jurisdiction to sell it unless it was of the opinion that without its sale the decree could not be satisfied. The ordersheet of the executing court clearly shows no recording of any finding that the decree could not be satisfied unless that portion of the holding concerning the shikmi interest was also sold. In my opinion, on the facts of the present case, there being no finding by the executing court that the decree could not be satisfied without the sale of the shikmi interest of the holding concerned, there was no jurisdiction in the court to sell that portion of the holding which concerned the defendants shikmi interest. To that extent the execution sale was void. The sale of the holding in other respects may have been good, but so far as the defendants shikmi interest was concerned it was certainly without jurisdiction. To that extent the execution sale was void. The sale of the holding in other respects may have been good, but so far as the defendants shikmi interest was concerned it was certainly without jurisdiction. In my opinion the decision of Narayan J. and the Additional District Judge that the plaintiffs suit must be dismissed was correct. I would accordingly dismiss this appeal with costs. Das, J. 6 I agree.