HARI DAS JATI Vs. PANCHKOWRI GHOSH

JUDGEMENT

(1.) The appellants in this case are defendants Nos. 1 and 2. It appears that their landlord obtained a decree for rent against them and put up their holding to sale. The plaintiff alleging himself to be a mortgagee applied to deposit the decretal amount in Court under Section 178 of the Bengal Tenancy Act. The defendants objected. The Execution Court declined to decide the question whether or not the plaintiff was entitled to make the deposit and directed that the case should be disposed of on full satisfaction. The plaintiff then brought this suit to recover the amount he had deposited from the defendants and has obtained a decree in the Courts below.

(2.) It has been argued by the learned Pleader for the appellants that the suit was wrongly framed and that a joint decree should not have been given against all the defendants. It is pointed out on the other side that the suit was not one for contribution and that the decree is in accordance with the pleadings. But, in the view that I take of this case, it is not necessary for me to go into this question.

(3.) The main contention of the defendants is that the deposit was a voluntary payment and that the plaintiff was, therefore, not entitled to recover it. He relies upon the cases of Janki Prasad Singh v. Baldeo Prasad 30 A. 167 : A.W.N. (1908) 58 : 5 A.L.J. 163 and Yogambal Boyee Ammani v. Naina Pillai Markayar 33 M. 15 : 3 Ind. Cas. 110 : 6 M.L.T. 162 : 19 M.L.J. 489 to which I may add the case of Raja Baikuntha Nath Dev Bahadur v. Uday Chand Maiti 2 C.L.J. 311. Under Section 171 of the Bengal Tenancy Act the persons entitled to make a deposit are persons having any interest voidable upon the sale to avoid which the deposit is made. In the judgments of the Courts below I cannot find any distinct decision that the plaintiff in this case had an interest voidable upon the sale. The plaintiff claimed to be a mortgagee. Neither of the Courts below finds that he had at the time of making this deposit a valid subsisting mortgage. Indeed, it would be somewhat difficult for them to come to a finding of that nature inasmuch as in the suit which he brought to enforce his mortgage the Court held, upon the evidence before it, that the bond in suit was neither a mortgage-bond nor was executed for any consideration. The learned Subordinate Judge and the Munsif appear to have thought that if a person in good faith believed that he had an interest which would be voidable upon the sale he was entitled to make a deposit under Section 171 whether as a matter of fact he had such an interest or not. This, I think, is an erroneous view of law. It has been decided in a case between the parties that the plaintiff had no valid mortgage against the defendants. Under the circumstances he is not, I think, a person entitled to make an application under Section 171. Reliance has been placed by the learned Subordinate Judge on Sections 69 and 70 of the Contract Act. Section 69 runs, "A person who is interested in the payment of money which another is bound by law to pay, and who, therefore, pays it, is entitled to be re-imbursed by the other." Here the question is much the same as that arising under Section 171 of the Bengal Tenancy Act. Is the plaintiff interested in the payment of the money? If he were a mortgagee he would have an interest in the payment, if he were not he would have no such, interest. Section 70 of the Contract Act runs "Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former" Here it may be admitted that the plaintiff did something for the defendants and that he did not intend to do this gratuitously. It may perhaps be said that the defendants enjoyed the benefit thereof, though this is by no means so clear inasmuch as he objected to the deposit being made and for aught I know, might have preferred that the holding should be sold. In the case reported in Yogambal Boyee Ammani v. Naina Pillai Marakayar 33 M. 15 : 3 Ind. Cas. 110 : 6 M.L.T. 162 : 19 M.L.J. 489, to which I have already referred it was held that it is necessary that the party sought to be made liable must not only be benefited by the payment but must also have had the opportunity of accepting or rejecting such benefit. Where no such option was left to him and the circumstances did not show that he intended to take such benefit it was held that he could not be said to have "enjoyed" such benefit within the meaning of the section.