JUGAL MOHINI DASI Vs. SRI NATH CHATTRJEE

JUDGEMENT

(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/s. 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/s. 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.