BROJENDRA NATH MITRA Vs. ARMAN SHEIKH

JUDGEMENT

(1.) In this case it appears that the petitioner before us brought a suit for rent against his tenant, a non-occupancy raiyat, and obtained a decree for a sum amounting to some Rs. 80 and odd with an order providing under the provisions of Section 66 (2) of the Bengal Tenancy Act that on failure of payment of that amount within 15 days from the date of the decree, the decree for ejectment should be executed. Thereafter the opposite party, one Arman Sheikh, claiming to be an under-raiyat under the non-occupancy raiyat, the judgment-debtor, tendered the amount due in order to prevent the execution of the decree for the ejectment of the non-occupancy raiyat. Having found the opposite party Arman Sheikh to be an under- raiyat the Munsif accepted the deposit, proceeding apparently on the analogy afforded by Sub- section (3) of Section 170 of the Bengal Tenancy Act. It is contended before us that the provisions of Section 170 and subsequent sections of the Bengal Tenancy Act apply only in oases of sale and have no application in cases of decrees for ejectment under the provisions of Section 66 (2). On behalf of the under-raiyat opposite party it is not contested that Section 170 and the following sections have no direct application in the present case- But it is contended that under Section 66 (2) it is not specifically provided that the payment must be made by the judgment-debtor. It is suggested that the payment may be made by any third party and that such payment must be accepted by the landlord as good payment preventing the execution of his decree for ejectment. In support of that contention we have been referred to the provisions of Section 114 of the Transfer of Property Act. But these provisions have no direct application here, and we cannot but hold that Section 66 (2) clearly contemplates that the payment made, to be a good payment, must be a payment by or on behalf of the judgment-debtor. Now in the present case the payment was not made on behalf of the judgment-debtor. On the contrary the deposit was offered by the opposite party Arman Sheikh expressly to protect his own interest and on the allegation that the judgment-debtor was in collusion with the landlord, the decree-holder.

(2.) That being so, we are of opinion that the Munsif should not have accepted the tender by the under-raiyat opposite party. In coming to that conclusion we are not to be understood as deciding any question which may hereafter arise as to the recognition by the landlord of the opposite party as his tenant, or any question that may arise under Section 85 of the Bengal Tenancy Act as to the validity of the sub-lease against the landlord. Those questions may be raised in appropriate proceedings.

(3.) For these reasons we make this Rule absolute, set aside the order of the Munsif complained of and direct repayment to the opposite party of the amount which has been deposited or paid by him into Court. Under the circumstances we make no order as to cost in this Rule.