1. These three limes were obtained by the landlord who has obtained decrees for rent and put them into execution. Applications wore made by purchasers of portions of the holdings for deposit of the decretal amount under Section 170(3) of the Bengal Tenancy Act. The decree-holder objected that the applicants had no right to make the deposit under the provisions of that section. The learned Munsif overruled the objection of the decree-holder and directed that the applicants were entitled to make the deposit under the law.
2. It is contended on behalf of the petitioners that the interest of the applicants in the holding is not voidable on the sale, and therefore they wore not entitled to make the deposit. It is not denied before us that the applicants have an interest in the holdings which are sought to be sold in execution of the rent decree. But the contention is that the interest of the applicants would pass by the sale, and it is not such an interest as should be considered as 'voidable on the sale.' There has been some conflict of decisions in this Court on that point. The learned Munsif relied on the case of Tarak Das Pal v. Hans Chandra Banerjee (1912) 16 C.L.J. 548 and the case of Ahamatullah Chowdhury v. Harkaru Saho (1914) 22 C.L.J. 106 in support of the proposition that these persons were entitled to make the deposit under Section 170(3) of the Bengal Tenancy Act. The cases to the contrary which we need refer to are the case of Nalini Behary Ray v. Pulmani Dasi (1912) 16 C.W.N. 421, the case of Mahamad Ismail v. Satyesh Chandra Sarkar (1922) 26 C.W.N. 170 (short notes) which appears in the Short Notes and the case in which judgment was delivered by one of us, Kumar Narendra Nath Milter v. Abdul Molla (1923) 27 C.W.N. 175 (short notes). In the case of Tarak v. Haris (1912) 16 C.L.J. 548 on which the counsel for the opposite party mainly relies, it is stated that the interest of an unrecognized purchaser of a non-transferable holding is an interest which is voidable on the sale. The contention that was raised on behali of the landlord in that case is mentioned at page 165 of the Report and it wag that the interest is extinguished on the sale and cannot therefore be described as voidable on the sale. This contention was overruled, as it was held that the contrary proposition had been laid down in some of the cases mentioned in the judgment. It would, however, appear on examination of the cases cited that this point has not been considered in any of the cases in the view that has been presented before us. The position is this; after the transferee has been recognized by the landlord a decree obtained against the transferor would not bind the transferee and therefore the interest of the transferee would not be affected by the sale. Such a transferee would not therefore necessarily come within the provisions of Section 170(3) of the Bengal Tenancy Act. Where the transferee of a non-transferable holding has not been recognised by the landlord a decree obtained against the tenant transferor would be binding on the unrecognized transferee, and in execution of the decree the interest of the transferee would also pass along with the interest of the transferor and the auction-purchaser gets the interest of both the persons, the transferor and the transferee, who were interested in the holding. It can therefore hardily be said that the interest of the transferee is one which is voidable on the sale and therefore upon the terms of the section it would appear that such transferees are -not entitled to make the deposit under Section 170(3) of the Bengal Tenancy Act. It is unnecessary for us to express any opinion whether they would be entitled to make any deposit under the rules laid down in Order 21 of the Code of Civil Procedure.
3. We are asked on behalf of the opposite party having regard to the conflict of decisions that this question should be referred to a Full Bench. But the view we now take has been taken generally in a number of cases and those cases being more recent than the case of Tarak v. Haris (1912) 16 C.L.J. 548 we do not think that it is necessary to make any reference to a Full Bench, Furthermore both of us agree with the reasoning in the decision of one of us in Kumar Narendra v. Abdul (1923) 27 C.W.N. 175 (short notes) mentioned above. The case of Ahamadulla v. Hakaru (1914) 22 C.L.J. 106 merely follows the decision in Tarke v. Haris (1912) 16 C.L.J. 548.
4. The rules are therefore made absolute and the order of the learned Munsif is set aside. Having regard to the circumstances of the case we make no order as to costs.
5. The record will be sent down at once.