JUDGMENT
1. We are invited in this Rule to set aside an order under Section 170, Sub-section (3) of the Bengal Tenancy Act, by which an application made by the petitioner for leave to deposit the decretal amount has been refused. It appears that the petitioner is the purchaser of a half share in a tenure. The opposite party is the superior landlord of the tenure-holders and in execution of a decree for arrears of rents against the recorded tenure-holders has got the property advertized for sale. The petitioners applied to the Court below for leave to deposit the money with a view to prevent the sale. The application was opposed by the decree-holder on the ground that Sub-section (3) of Section 170 of the Bengal Tenancy Act had no application. This objection has prevailed and the application has been dismissed.
2. In support of the Rule, it has been argued that the view taken by the Court below is opposed to the decision of this Court in the case of Radhika Nath Sarkar v.
Rakhal Raj 13 C.W.N. 1175 : 10 C.L.J. 473 : 3 Ind. Cas. 835. In answer to the Rule, reliance has been placed upon the observations of this Court in the case of Jotindra Mohan Tagore v. Durga Dabe 10 C.W.N. 438. In our opinion, there is no room for dispute that the order of the Court below is erroneous and must be discharged.
3. To determine whether the petitioners are entitled to make the deposit under Sub-section (3) of Section 170 of the Bengal Tenancy Act, two elements have to be taken into consideration; namely, first, whether the petitioners are persons who have an interest in the tenure; and secondly, whether that interest is voidable on the sale.
4. In so far as the first of these elements is concerned, there is no question that the petitioners have an interest in the tenure. In 1904 the decree-holder made an attempt to sell the tenure in execution of a decree for arrears of rent against the recorded tenants. On that occasion the petitioners applied for leave to deposit the judgment-debt under Section 170, Sub-section (3). Their application was opposed by the decree-holder. The Court held, however, that the property in question was a transferable tenure and that the petitioners were interested therein. In pursuance of this order the judgment-debt was deposited in due course, and the money was withdrawn by the decree-holder The effect of this decision obviously is that as between the landlord and the transferee of the tenure, it has been conclusively settled that the transferees have acquired an interest in the tenure by purchaser. It may further be observed that as the landlord has withdrawn the sum deposited, it is no longer open to him to dispute the title of the depositors. [Thomas Barclay v. Syed Hossein Ali Khan 6 C.L.J. 601.] We may add that in 1905, there was a similar attempt at a sale of the property in execution of a decree for arrears of rent against the recorded tenants. An application was made under Section 170, Sub-section (3) of the Bengal Tenancy Act and in support thereof the conveyance, which is the foundation of the title of the petitioners, was produced. On that occasion also the deposit was allowed to be made and the sale was stayed. On neither of these two occasions did the decree-holder attempt to challenge the propriety of the order by an application to this Court: It is now suggested that the orders were not operative as against him, because he with-drew the money deposited, under a protest. This contention is evidently unsustainable. His objection was overruled and he acquiesced in the order made by the Court; he made no attempt to get the order set aside. It is no longer open to him to contend that because his objection was held to be unsustainable on that occasion, his objection in the present case has a better chance of success. We must consequently hold that the first element necessary to bring the case within the scope of Section 170, Sub-section (3) has been established.
5. The second element which requires consideration is whether the interest of the petitioner is voidable on the sale of the property. We invited the learned Vakil for the decree-holder to state whether the decree was in essence a money decree, and whether a sale held in execution thereof would pass to the purchaser merely the right, title and interest of the judgment-debtor and in no way affect the position of the unrecorded transferee. He declined to make any admission, but stated that the decree for rent had been obtained by the holder of the 14 annas of putni interest and 2 annas of darputni interest. Hence it is obvious that the effect of a sale in execution of the decree will be to pass to the purchaser the tenure free of the interest of the present petitioners. Consequently, the interest which the petitioners possess is voidable upon the sale. This view is in accordance with that taken by this Court in the case of Radhika NathSarkar v. Rakhal Raj 13 C.W.N. 1175 : 10 C.L.J. 473 : 3 Ind. Cas. 835. Our attention, however, has been drawn to some observations, which may be interpreted in a contrary sense, to be found in the case of Jotindra Mohan Tagore v. Durga Dabe 10 C.W.N. 438. We are not prepared to accept these observations as an accurate exposition of the true effect of Section 170, Sub-section (3). It may be remarked that the observations were in the nature of obiter dicta, because as the learned Judges discharged the Rule, it was unnecessary to decide what the precfse scope of Section 170, Sub-section (3) might be. We may add that if the course adopted by the Court in the case of Jotindra Mohan Tagore v. Durga Dabe 10 C.W.N. 438 is followed on the present occasion, the Rule must be made absolute. The learned Judges held in that case that as on a previous occasion the transferee of the tenure had been allowed to make a deposit under Section 170, Sub-section (3) of the Bengal Tenancy Act, the Court below acted correctly in allowing him to make a deposit on a subsequent occasion. Here in 1904 and 1905 the present petitioners were allowed, in spite of opposition, to make a deposit under Section 170, Sub-section (3). There is no reason, therefore, why on the present occasion the deposit should not be allowed and accepted.
6. The result is that this Rule is made absolute and the order of the Court below discharged. The petitioners will be at liberty to make the deposit under Section 170, Sub-section (3). They are entitled to the costs of this Court. We assess the hearing fee at 2 gold mohurs.
