JUDGMENT
Suhrawardy, J.
1. The petitioners as plaintiffs brought a rent suit against the opposite parties 5 to 10 for recovery of arrears of rent and obtained an ex-parte decree. The decree was passed on the 30th November in the following, terms:
The defendants do pay to the plaintiffs the decretal amount mentioned therein within 15 days from the date on which the decree is signed. In default the defendants be ejected from the land in suit within 15 days from the date of the decree.
2. The opposite parties 1 to 4 claiming to be transferees of a portion of the holding deposited the decretal amount on their own account as such transferees. It is conceded that the holding was a non-transferable occupancy holding and that the opposite parties 1 to 4 are transferees of a portion of the holding. The landlord objected to their right to make the deposit but the Munsif accepted the deposit. The plaintiffs moved this Court as wall as preferred an appeal in the lower appellate Court. The appeal in the lower appellate Court was decided against him but their case before us is that no appeal lay to the lower appellate Court and that the present application which was filed in this Court within time from the judgment of the Munsif should be heard and decided on the merits. The learned vakil appearing for the opposite parties has taken a preliminary objection that this application does not lie as the question in dispute is governed by Section 47, Civil P.C. and that the petitioners should have come to this Court on second appeal. We are unable to give effect to this contention. There is-nothing in Act 8 of 1869 which makes the provision of the Civil P.C. applicable to sales under that Act.
3. This case comes from Sylhet where Act 8 of 1869 is in force and the decree that was passed in this case was passed under Section 52 of that Act. It is argued on behalf of the petitioners that under that section the opposite parties (we leave out of consideration the other opposite parties who are tenants and do not appear) are not entitled to make the deposit. The deposit contemplated under that section must be made by the tenant defendant himself or it may be made by any person on his behalf. On behalf of the opposite parties it is contended that the opposite parties having an interest in the property being purchasers of a portion of the holding are persons entitled to make the deposit under that section.
4. Reliance is placed on behalf of the opposite parties mainly upon the decision in the case of Kali Kishore Das v. Gopal Ram Shaha [1918] 23 C.W.N. 132. That case in its turn follows the decision in the case of Sarada Prasad Roy Chowdhury v. Nobin Chandra Dutt [1864] 1 Marshall’s Rep. 417. The learned vakil for the petitioners argues that these cases were wrongly decided and that the intention of the legislature may be gathered from the various sections of the Act to which reference will be made. We have considered this matter carefully as it raises considerations which affect the tenants in that part of the country but we are unable to accept the correctness of the above rulings if they purport to lay down an abstract proposition of law.
5. Under Section 48, Act, 8 of 1869, the tenant may tender the amount of rent due from him at the zamindar’s malcutchery and if it is not accepted and receipt in full granted for it, it shall be lawful for him to deposit such amount in Court and such deposit shall have the effect of payment to the landlord. Under Section 47, the Court receiving deposit shall issue notice on the landlord. Under Section 48 if a suit is instituted against the tenant and if he had duly tendered the amount of rent due from him before the institution of the suit, he may pay into Court such amount without; paying any costs. Under Section 49, if no such previous tender was made, the tenant himself may pay into Court what he considers to be due with costs on that amount. If the plaintiff insists after such payment to proceed with the suit and if he does not succeed, he will not be entitled to any further costs and shall be charged with defendant’s costs, If, on the other hand, he succeeds in proving that the amount due to him was greater than that deposited by the defendant he is entitled to full costs of the suit from the defendant. After all these provisions regarding a suit between the landlord and the tenant comes Section 52 which is in these terms:
Any person desiring to eject a raiyat or to cancel a lease on account of non-payment of arrears of rent, may sue for such ejectment or cancelment and for recovery of the arrears in the same action or may adduce any unexecuted decree for arrears of rent as evidence of the existence of such arrears in a suit for such ejectment or cancelment.
6. We pause here to consider the effect of this part of the section. It empowers the landlord consistently with the provisions of Section 22 of the Act to sue for ejectment of the tenant when his rent remains in arrear and he may for that purpose join the claim for rent along with the claim for ejectment and may adduce evidence of there being arrears in the way indicated in the clause. This clause is followed by another clause with which we are concerned.
In all oases of suits for the ejectment of a raiyat or cancelment of a lease the decree shall specify the amount of arrears; and if such amount together with interest and costs be paid into Court within 15 days from the date of the decree execution shall be stayed.
7. This section follows the earlier enactment (Act 10 of 1859), Section 78, of which is also in similar terms and runs thus:
Any person desiring to eject a tenant or cancel on account of non-payment of rent may sue for such ejectment or cancelment and for recovery of the arrears in the same action or may adduce any unexecuted decree for arrears of rent as evidence of the existence of such arrears in a suit for such ejectment or cancelment. In all cases of suits for the ejectment of a raiyat or the cancelment of a lease the decree shall specify the amount of the arrears, and if such amount together with costs of the suit be paid into Court within fifteen days from the date of the decree, execution shall be stayed.
8. This provision of the law has been reproduced in Section 66, Clause (2), Bengal Tenancy Act, which is as follows:
In a suit for ejectment for an arrear of rent a decree passed in favour of the plaintiff shall specify the amount of the arrears and of the interest, if any, due thereon, and the decree shall not be executed if that amount and the costs of of the suit are paid into Court within fifteen days from the date of the decree or, when the Court is closed on the fifteenth day, on the day upon which the Court re-opens.
9. It is to be noticed that in all these enactments it is not distinctly said by whom the amount of the decree for arrears of rent may be deposited. The sections preceding Section 52 to which I have referred speak of the part the tenant may take previous to the bringing of a suit for arrears of rent. It is not permitted by law that the tender can be made by any others than the tenant himself or by the transferee of the whole or part of his interest; nor can such person deposit the money in a suit to challenge the plaintiff’s right to recover the money. It does not seem likely that the legislature intended that after the decree the door should be thrown open to the public to come and deposit in order to avoid the landlord’s right to re-enter. In the case of Sarada Prosad Roy Chowdhury v. Nobin Chandra Dutt , the learned Judges did not discuss the question of law in all its bearings. That was a decision under Section 78, Act 10, 1859 and the learned Judges said that as the Act did dot say that the arrear must be paid by the tenant or that it should not be paid by his transferee or by any other party interested in saving the forfeiture of the tenancy the party in that case to whom the defendant had assigned his right under the pottah was entitled to pay the amount of arrears and avoid the forfeiture. This seems to me to be a very poor reasoning, for it does not seem logical to argue that because the section does not mention by whom the payment may be made, though it speaks of decree for arrears of rent against the tenant only it can be held that any one is entitled to make the deposit. The further qualification that the learned Judges fixed of the person making the payment viz., that he may be a transferee or a person interested in saving the foreiture, is not warranted by the wording of the section. According to the interpretation given by the learned Judges to the words of the section it would seem that any one, even a stranger, may make the deposit and defeat the landlord’s claim for re-entry. If ordinary meaning is given to the words of the Section 52, Act 8 of 1869 they ca n only mean that if the money is not paid within time by the person who is liable to pay, the consequences mentioned in the clause will follow.
10. In the case of Kali Kishore Das v. Gopal Ram Shaha [1918] 23 C.W.N. 132, the learned Judges (Teunon and Cuming, JJ.) did not discuss the law, but relied for their decision upon the case of Sarada Prosad v. Nobin Chandra [1864] 1 Marshall’s Rep. 417 and on the Pall Bench case of Dayamoyi v. Ananda Mohan [1914] 42 Cal. 172. I have discussed the case of Sarada Prosad v. Nobin Chandra [1864] 1 Marshall’s Rep. 417 and I fail to see what bearing Dayamoyi’s case (1914) 42 Cal. 172 has on the question before us. In that case it was held that a person who is a transferee of a portion of a holding is one who can be said to have such interest as to make him a representative of the judgment-debtor under Section 47, Civil P.C., or for the matter of that, a person interested under Order 21, Rule 89, or Rule 90, Civil P.C. I do not think that Section 47, Civil P.C., has any application in the present case, the question being one of construction of Section 52, Act 8 of 1869, B.C., and, therefore the decision in the Full Bench case has hardly any bearing on the point in dispute here.
11. It is curious that shortly before the case of Kali Kishore Das v. Gopal Ram Shaha [1918] 23 C.W.N. 132 one of the learned Judges, (Teunon, J.) was a party to the deCision in the casts of Brojendra Nath Mitra v Arman Sheikh (1918) 27 C.L.J. 478. That case was decided under Section 66, Bengal Tenancy Act; and I have tried to show that there is hardly any difference between the language of that section and that of Section 52, Act 8, 1869. There Mr. Justice Teunon, sitting with Mr. Justice Newbould, held that Section 66(2), Bengal Tenancy Act, contemplates that the payment to be a good payment must be a payment by or on behalf of the judgment-debtor. The two decisions – one in Kali Kishore v. Gopal Ram [1918] 23 C.W.N. 132 and the other in Brojendra v. Arman Sheikh [1918] 27 C.L.J. 478 – seem to be conflicting for though they are under different sections of different Acts, they relate to the interpretation of almost similar language. The case of Brojendra v. Arman Sheikh [1918] C.L.J. 478 was cited at the hearing of the case of Kali Kishore v. Gopal Ram [1918] 23 C.W.N. 132, but the learned Judges took no notice of it.
12. Reference to Sections 59 and 62, Act 8, 1869 may also be helpful. These sections deal with the sale of under-tenures. Under Section 59 a certain procedure is laid down with regard to the publication of the sale of an under-tenure; and Section 62 provides that if the sum due under the decree is paid before the data of sale by the defaulting holder of the under-tenure or any one on his behalf or anyone interested in the protection of the under-tenure, such sale shall not take place. Under Section 63 of the Act if a third party claims to be in lawful possession of the under-tenure the Court may stay the sale and adjudicate on his claim. This special provision with regard to under-tenures lends strength to the contention that the legislature did not extend it in the case of sale of non-transferable occupancy holdings, for it would have been as easy for it to mention the persons by whom the payment can be made as it was easy to enumerate them in the case of under-tenures. As for the principle which may be extended to a consideration o£ similar questions, I am referred to the recent Pall Bench decision in the case Jharu Mondal v. Khetra Mohan Bera A.I.R. 1926 Cal. 934 (F.B.) in which it has been held that the purchaser of the whole or portion of a non-transferable occupancy holding who has not been recognized by the landlord has not an interest in the holding which is voidable on the sale and is not entitled to make a deposit under Section 170(3), Bengal Tenancy Act. If a transferee of a non-transferable occupancy holding has not sufficient interest to avoid the sale by depositing the amount of the sale, it does not seem to me reasonable to hold that such a person is entitled to make the deposit under Section 66(2), Bengal Tenancy Act, or a similar provision in other enactments, to defeat the landlord’s decree for ejectment.
13. We have been asked to refer this matter, as we have disagreed with certain decisions of this Court to a Fall Bench. I do not think that necessity, for such a reference has arisen. The decision in Kali Kishore v. Gopal Ram [1918] 23 C.W.N. 132 is based upon no reasoning and is attempted to be based on one of certain decisions which does not support it. We are further of opinion that one of the learned Judges who was a party to the decision took a contrary view in respect of a similar controversy in Brojendra v. Arman [1918] 27 C.L.J. 478. besides, the facts in Kali Kishore’s case (1918) 23 C.W.N. 132 have not been fully reported and we do not know if the decree in that case is similarly worded as the decree in the case before us which leaves no room for doubt, in my mind, that it makes the sum decreed payable by the defendant alone. Taking all these circumstances into consideration we do not think that we are called upon in this case to refer the matter to a Pall Bench.
14. The result of all these considerations is that this rule must be made absolute and the orders of the lower Court3 allowing opposite parties 1 to 4 to make the deposit are set aside, The petitioners are entitled to their costs. Considering the number of hearings this matter had in this Court we a3se3s the hearing-fee at four gold mohurs.
Mallik, J.
15. I agree.
