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Radha Benode Mondal Vs. Nitai Chand Sant and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported inAIR1924Cal185,76Ind.Cas.358
AppellantRadha Benode Mondal
RespondentNitai Chand Sant and ors.
Cases Referred and Mahadeo Lal v. Langat Singh
Excerpt:
bengal tenancy act (viii of 1885), section 170(3) - landlord and tenant--rent decree--sale of non-transferable occupancy-holding--mortgagee of holding, whether entitled to make deposit. - .....the holding in question was a non-transferable occupancy holding. the opposite party applied to make a deposit under section 170, sub-section (3) of the bengal tenancy act, alleging that he was a mortgagee of the holding in question. the landlord objected to this deposit, but the munsiff held that the opposite party had a right to deposit the money to prevent the sale. it is against this order that the present rule is directed.2. there can be no doubt that there is a considerable conflict of judicial authority upon the question thus raised -a conflict that has been adverted to in several of the reported decisions. the munsiff in arriving at his conclusion considered the cases of nalini behary ray v. fulmani dasi [1912] 16 c.w.n. 421; tarak das v. harts chandra [1912] 16 c.l.j. 548;.....
Judgment:

Panton, J.

1. (No. 629). This Rule was obtained by a landlord who had brought to sale, in execution of a decree for rent the holding of the opposite party. The matter was dealt with in the Court below and has been dealt with in this Court on the footing that the holding in question was a non-transferable occupancy holding. The opposite party applied to make a deposit under Section 170, Sub-section (3) of the Bengal Tenancy Act, alleging that he was a mortgagee of the holding in question. The landlord objected to this deposit, but the Munsiff held that the opposite party had a right to deposit the money to prevent the sale. It is against this order that the present Rule is directed.

2. There can be no doubt that there is a considerable conflict of judicial authority upon the question thus raised -a conflict that has been adverted to in several of the reported decisions. The Munsiff in arriving at his conclusion considered the cases of Nalini Behary Ray v. Fulmani Dasi [1912] 16 C.W.N. 421; Tarak Das v. Harts Chandra [1912] 16 C.L.J. 548; Ahamadullah Chowdhury v. Hakaru Sahu [1914] 22 C.L.J. 106 and the decision of a Division Bench of this Court in Civil Revision Case No. 509 of 1918 decided by Mr. Justice Fletcher and Mr. Justice Walmsley on the 24th January 1919 [1919] 50 I.C. 596 and he was of opinion, and was rightly of opinion, that the latter of these cases was in favour of the view which he had adopted. In support of this Rule, however, a further authority has been cited which supports the view taken in the case of Nalini Behary v. Fulmani [1912] 16 C.W.N. 421 which I have referred. In the first place, it is to be noted that the Patna High Court in Maharajah Sir Rameshwar Singh v. Raghunandan [1916] 1 Pat. L.J. 403 and Mahadeo Lal v. Langat Singh [1917] 2 Pat. L.J. 457 adopted a view contrary to that taken by the Munsiff and the latest decision on the point is of this Court in Civil Revision Case No. 591 of 1921 decided by Mr. Justice Woodroffe and Mr. Justice Suhrawardy on the 9th August last (26 C.W.N. 170 notes) in which it was held that the transferee was not entitled under Section 170, sub-section (3) to make the deposit. It seems to me that in the circumstances, I should follow this latest decision of this Court, and so doing, I make the Rule absolute and set aside the order complained of. The petitioners will get their costs in this Rule, hearing fee being assessed at one gold mohur.

3. This judgment will also govern Civil Revision Case No. 665 of 1922.


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