Trevelyan and Beverley, JJ.
1. This was a suit brought by the plaintiffs for arrears of rent for the years 1294,1295, 1296 and three quarters of 1297. The defence was that the rent for this period had been paid into Court under Section 61 of the Bengal Tenancy Act, because the tenant entertained a bond fide doubt as to who was entitled to receive the money. The defendant said that the rent was payable yearly, and that the rent for 1297 was paid into Court shortly after the suit was brought, viz., at the close of the year 1297.
2. The Munsif found as a fact that the defendant had a bond fide doubt as to who was entitled to receive the rent, and was not to blame for the litigation, and he held that the deposits must be taken as sufficient payment, and that this amounted to an acquittance for the rent due, and he gave the plaintiffs a decree for the whole amount of rent and for interest on the ground that the rent was payable quarterly and for the costs of the suit in respect of the rent for 1'297, that payment not having been made until after the suit was brought. Although the Munsif gave a decree for the whole amount claimed he directed that, out of the monies due, the amount deposited should be deducted and that execution of the decree should proceed for the balance.
3. After taking further evidence the Subordinate Judge came to the conclusion that the money was not payable quarterly but yearly, and therefore that the plaintiff was not entitled to interest, and he altered the decree of the Munsif by disallowing interest, but he did not interfere with the order for costs.
4. It is contended here, in second appeal, that the only course for the Subordinate Judge was to dismiss the suit, and we think that was the proper course for him to follow, as the rent deposited under Section 61 operated as an 'acquittance. It is further contended here that the suit must be dismissed with costs. The ordinary rule is that the person who is to blame for the litigation should pay the costs. It is found that the defendant was not to blame, and there is no reason why he should not get his costs. The decrees of the lower Courts will be set aside and plaintiffs' suit dismissed with costs in all the Courts.
5. It is found that the rent for the three quarters of 1297 was not due. Therefore the suit in respect of that is premature, and as the rent for this period is in deposit it is not necessary to make any order as to that.