R.C. Mitter, J.
1. This rule is directed against an order of the learned District Judge of Birbhum dated 7th March 1935 passed in Misc. Appeal No. 141 of 1934. The appeal was directed against an order of the learned Munsiff dated 4th October 1934 made on an application filed under the provisions of Section 174 (3), Ben. Ten. Act. The following facts are material for the decision of this rule. Opposite party No. 1 was a tenant in respect of a holding held under opposite parties Nos. 2 to 7. On the same day three sets of the cosharer landlords filed three suits for rent for the same period, viz., suits Nos. 1608/32, 1616/32 and 1628/32. All these suits were filed under the procedure laid down in Section 148-A, Ben. Ten. Act, that is to say, the co-sharer landlords who had not joined as plaintiffs were made defendants. All the suits were taken up on the same day and decreed on 29th November 1932. It does not appear that any of the defendants appeared and the decrees were ex parte. The decree in suit No. 1616 was executed first but opposite party No. 1 paid down the money and that decree was satisfied on 19th June 1933. Then the decree in suit No. 1628 was put in execution on 23rd February 1934, the execution case being No. 333/34. The tenancy was sold on 5th June 1934 and purchased by the petitioner before me for Rs. 250. On 4th July 1934 opposite party No. 1, the judgment-debtor, filed an application under Section 174 (3), Ben. Ten. Act, to set aside the sale. The application was not accompanied by a deposit in Court of the decretal amount. The case of the opposite party No. 1 was that the decree passed in the rent suit No. 1628/32 was not a rent decree and the sale was not a rent sale under the provisions of Ch. 14, Ben. Ten. Act. This question was taken up as a preliminary point by the learned Munsiff and by his order dated 4th October 1934 he held that it was a rent decree. He did not consider the question as to whether there was any irregularity in the sale or not. The learned Munsiff held that the decree was a rent decree and the sale was a rent sale and he made an order in the following terms:
that the judgment-debtor Panchkari Mandal be called upon to deposit the decretal dues by 6th October 1934 or else the application filed for setting aside the sale shall stand dismissed.
2. Against this order Misc. Appeal No. 141/34 was preferred by the judgment-debtor to the District Judge. At the time of the hearing of the appeal, a preliminary objection was taken that no appeal lay inasmuch as the suit in which the decree was passed was valued at less than Rs. 50 and the Munsiff had final jurisdiction under Section 153, Ben. Ten. Act. On that the learned District Judge treated the memorandum of appeal as an application in revision under the provisions of Section 153 and heard the matter as a civil motion. He held that the provision of Section 148-A, Sub-section (9), was a mandatory provision, that the co-sharer landlords, plaintiffs in suit No. 1628/32, were bound to claim rent due to their share by only becoming co-plaintiffs in one or the other of the rent suits No. 1608 or 1616. He held that the decree passed in suit No. 1628/32 was a nullity because it was against the clear statutory provisions contained in Sub-section (9) of Section 148-A. He further held that the said decree being a nullity the proceedings in execution of that decree were nullities and the sale in execution thereof was a nullity. In my judgment both the orders of the learned District Judge and of the learned Munsiff are wrong and must be set aside. The 'question of compliance or non-compliance with the provision of Sub-section (9) cannot be raised at this stage. After the decree had been passed in the rent suit No. 1628/32, the decree became final as between the parties. Even a suit to have a decree declared as a nullity would not he. This is what I gather to be the principle laid down in Bindeswari Charan Singh v. Bageshwari Charan Singh 1936 P C 46. For these reasons, I hold that the decision of the learned District Judge is erroneous. I do also hold that the order passed by the learned Munsiff is erroneous.
3. Apart from the dissentient note in one of the judgments of this Court, the course of decisions of this Court is that the deposit which is required to be made under the provisions of proviso (b) to sub s. (3), Section 174, Ben. Ten. Act, has to be made not along with the application under Section 173 (3), but has to be made before that application is allowed, that is to say, the proper time for the Court to call for the deposit under that provision is after the Court has come to the conclusion that the sale ought to be set aside. Then the Court should make a conditional order requiring the applicant to put in the money required under the said provisions within certain time and on the money being put in, make the final order setting aside the sale, but in default to reject the application. I accordingly set aside the orders of both the Courts below, and in substitution of the order of the learned Munsiff, make the following order: that the learned Munsiff is to go into the merits of the controversies between the parties and if he is of opinion that the sale ought to be set aside he will then make an order requiring the deposit of the decretal amount to be made by the applicant within a certain time. If the applicant complies with the order the final order for setting aside the sale will be made. If the order is not complied with the final order will be to dismiss the application. If the Court comes to the conclusion that the sale ought not to be set aside, no such preliminary order is to be made. The result is that the rule is made absolute on these terms, and the case is sent back to the learned Munsiff for trial on the merits. There will be no order for costs of this Court.