1. In this case an under-raiyat applied to make a deposit under Section 170, Clause (3), Ben. Ten. Act, when the landlord decree-holder sought to put up to sale the holding of the occupancy raiyat under whom he held. The Munsif held that the under-raiyat had no locus standi to make the deposit, as his under-tenancy was not created by a registered instrument or with the consent of the landlord. The under-raiyat has then obtained this rule.
2. The learned Munsif has referred to and proceeded upon the authority of the case of Bhuban Mohan Guha v. Sheikh Badan  46 Cal. 766. That was a case where the landlord, who had purchased an occupancy holding at a rent sale, proceeded to sue the under-raiyat for khas possession without annulling the under-tenancy under Section 167 or serving notice under Section 49, Ban. Ten. Act. It was held that as the under-raiyati holding was not created by a registered lease or with the landlord's consent, there was no subsisting subtenancy which stood good against the landlord and which required to be put an end to either under Section 167 or under Section 49. That case, in our opinion, has little bearing upon the question which arises in the present case, where a sale has not yet taken place, and there is no knowing who will, if a sale does take place, be the purchaser therein. In a recent decision of this Court, in the case of Jnanendra Chandra Ghosh v. Royman Sheikh : AIR1927Cal513 , it has been held that the interest of an under-raiyat, which was created by a registered lease in contravention of Section 85, Sub-section (2), and which purported to be a perpetual lease, is not an interest which the law recognizes and consequently is not an interest coming within the description of 'incumbrance,' which, unless steps are taken to avoid it, subsists after the sale. Following the decision of the Pull Bench in the case of Jharu Mandal v. Khetra Mohan Bera A.I.R 1926 Cal. 934 it has been held that such an under-raiyat cannot be held to have an interest voidable at the sale and so is not entitled to make a deposit under Section 170, Clause (3). That case again is distinguishable, because the lease in that case, having been in contravention of Sub-section (2), Section 85, was void, while, in the present case, the lease is only invalid against the landlord. It is an interest which would amount to an incumbrance and would have to be annulled by every purchaser except the landlord himself before it would cease to exist. The rights of a purchaser, who purchases in execution of a decree under Chap. 14 of the Act, are regulated by Section 159 and not Section 85 of the Act. We are of opinion that the interest of the under-raiyat in the present case is one which is voidable at the sale and the under-raiyat, therefore, is entitled to make the deposit.
3. The rule is made absolute and the order of the learned Munsif being set aside, it is ordered that the petitioner be allowed to make the deposit. There will be no order as to costs in this rule.