Stanley, C.J and Banerji, J.:— This appeal arises out of a suit for sale brought upon a mortgage, dated the 26th of September, 1898, executed by the defendants Nos. 1 to 3 in ftvour of the plaintiff. The mortgage bond provides for payment of the amount secured by it by instalments covering a period of twelve years. The plaintiff alleges that default has been made in the payment of one of the instalments and he claims the amount of all the instalments remaining unpaid. He also prays for the sale of the hypothecated property, which consists of a grove, admittedly the occupancy holding of the mortgagors, and a dwelling house and enclosure in which they reside as such occupancy tenants. The court of first instance granted to the plaintiff a decree for only one of the instalments in respect of which default had been made, but it dismissed the remainder of the claim, including the claim for sale of the mortgaged property. The lower appellate court has modified the decree of the court of first instance and made a decree for the whole of the amount claimed. In its judgement it upheld the first court's finding that the mortgaged grove was not liable to sale, but it was of opinion that the dwelling house could be sold. In the decree which was prepared there is, however, an order for the sale of all the mortgaged property including the grove.
In this appeal the first contention raised on behalf of the appellants is that the plaintiff is not entitled to claim the amounts of unpaid instalments. Having regard to the terms of the mortgage we are unable to accede to this contention. Under the mortgage-deed the mortgagee is given the right to claim all the instalments in the event of default being made in the payment of any one of them. The court below has therefore right in making a decree for the instalments which remained unpaid.
It is next contended that the decree for sale of the dwelling house of the mortgagors in contrary to the provisions of section 266 of the Code of Civil Procedure of 1882, which exempts the materials of the dwelling house of an agriculturist from attach-mentor sale. Under the Agra Tenancy Act, an occupancy holding of a tenant is not transferable and cannot be sold by auction in execution of a decree. The dwelling house of an agriculturist may be deemed to be an appurtenant to his holding. Further, section 266 of the Code of Civil Procedure, 1882, which has been re-enacted in section 60 of Act No. V of 1908, prohibits the sale of materials of dwelling houses occupied by agriculturists. The court therefore has not the power to sell the materials of such a dwelling house, and it necessarily follows that it cannot make a decree for sale of such property. In this view the claim for sale of the dwelling house of the defendants ought not to have been decreed. The order in the decree for sale of the grove was clearly erroneous. The result is that we allow the appeal so far that we dismiss the claim for sale of the hypothecated property and affirm the remainder of the decree of the court below. We make no order as to the costs of this appeal.
Decree modified.