1. This is a petition for revision of an order of a lower appellate Court dismissing an appeal from an order of a learned Munsif refusing to set aside a sale under Section 174, Bengal Tenancy Act.
2. It will be unnecessary to deal with the facts of the case in any detail because the case was disposed of on a point of limitation.
3. Admittedly the last day for preferring an appeal to the lower appellate Court was 22nd March 1948. On that date the appellant presented the appeal, but he did not deposit in Court the amount recoverable in execution as required by the proviso to Section 174 (5), Bengal Tenancy Act. The Court made the following order -- that the appeal be registered and the appellant was directed to deposit the amount recoverable in execution of the decree within limitation. The amount recoverable was not deposited for some little time and indeed could not have been deposited within limitation because the case was filed on the last possible day.
4. Before the lower appellate Court a point was taken that the appeal was barred by time and the learned Judge relying upon a number of oases of this Court upheld that plea and dismissed the appeal.
5. Before me it has been contended that the matter has now been put beyond all controversy by a recent decision of this Court in which it was expressly held that the deposit required under the proviso to Section 174 (6) need not be made within limitation, but it could be made at any time before the appeal is admitted. This recent decision is the case of Sasadhar Ghose v. Harihar Kar, 53 C. W. N. 694 : (83 C. L. J. 389) in which it was held by a Bench that the use of the word 'admitted' occurring in the proviso to Sub-section (5) of Section 174, Bengal Tenancy Act, was intentional and the legislature provided for the deposit of the money to be in time if it was so done before the appeal is admitted by a judicial act of the Court. It followed that when the legislature had given a definite limit under Sub-section (e) of Section 174 that the deposit must be made before the appeal was admitted, the Court had not only the jurisdiction but was bound to receive the deposit if made before the appeal was actually admitted. The Bench further held that there was a clear distinction between the registration of an appeal or admitting the memorandum on the one hand which was a ministerial Act and the actual admission of an appeal on the other which was a judicial Act. The latter referred to the hearing under Order 41, Rule 11, Civil P. C., if the Court was not required at any earlier stage to pass any judicial order.
6. It is quite impossible to distinguish the facts of this case from the facts of the case before me and as it is a Bench decision I am bound to follow it. It was, however, suggested by learned Advocate for the opposite parties that there is an earlier Bench decision of this Court to the contrary. That is the ease of Bidhubala Dasi v. Raishahib Kumud Nath Das, 41 C. W. N. 1299. There are some observations of Costello J. in that case which might be regarded as in conflict with the later Bench decision. But the decision itself is not in conflict because it is quite clear that in that case no deposit was made at all and certainly not before admission, and therefore the decision itself is not in conflict with the later case of Sasadhar Ghose (53 C. W. N. 694: 83 C. L. J. 389) to which I have made reference.
7. For these reason I am bound to hold that the appeal was not barred by limitation and therefore it should have been heard on the merits.
8. In the result, therefore, I would allow this revision, set aside the order of the lower appellate Court and remit the case to that Court to be heard and determined upon the merits and in accordance with law. The costs of this revision will abide the event in the Court below.