1. We are invited in this Rule to set aside an order made by the Court of first instance under Sub-section (1) (c) of Section 171 of the Bengal Tenancy Act. The circumstances under which the order has been made are not disputed. The Maharaja of Burdwan obtained a decree for arrears of rent against one of his tenants. In execution of this decree the holding was advertised for sale. It appears that the tenant had executed a simple mortgage of the holding on the 27th May 1900 and a usufructuary mortgage on the 9th July 1103. On the 17th January 1911, the simple mortgagee made an application under Sub-section (3) of Section 170 for leave to deposit the judgment-debt on the allegation that he had, in the holding advertised for sale, an interest voidable on the sale. This application was granted without notice to the decree-bolder or the judgment debtor. On the 11th April 1911, the simple mortgagee who had made the deposit, applied to the Court to be put in possession of the holding as first mortgagee thereof under Section 171, Sub-section (1) (c). Notices were there upon issued to the persons interested in the holding. On the 17th May 1911, the judgment debtor appeared and objected to the grant of the application. He stated that the simple mortgage had been satisfied, that the mortgagee had no subsisting interest such as would entitle him to make an application under sub-section 3 of Section 170, and that, in reality, the money deposited by the mortgagee wag his own money, which he had entrusted to the mortgages to be put into Court on his behalf. He added that his usufructuary mortgagee and not he himself was in possession of the holding. On the same day, the usufructuary mortgagee also appeared in Court and resisted the application of the simple mortgagee on the same grounds as urged by the judgment-debtor. The Court thereupon took evidence and came to the conclusion that the usufructuary mortgage had not been acted upon and that the judgment-debtor was still in possession. The Court consequently directed the simple mortgagee to be placed in possession. The usufructuary mortgagee appealed to the Subordinate Judge, who held that the appeal was incompetent, because the questions in controversy between the two mortgagees did not fall within the scope of Section 47 of the Code of Civil Procedure of 1908. The Subordinate Judge, however, proceeded to express an opinion on the merits of the case, namely, that the usufructuary mortgage was not collusive and that the usufructuary mortgagee was in possession of the holding. We are now invited by the usufructuary mortgagee to set aside the order of the Court of first instance, on the ground that the Court had no jurisdiction under Sub-section (1) (c) of Section 171 to make an order for delivery of possession as against a stranger to the proceeding. The order of the Subordinate Judge has also been assailed on the ground that the appeal before him was competent, and, on the facts found, should have been allowed.
2. In so far as the competency of the appeal before the Subordinate Judge is concerned, we are of opinion that the view taken by him is unquestionably sound. The questions in controversy between the mortgagees are not questions relating to the execution, satisfaction or discharge of the decree, nor do they arise between the parties to the suit or their representatives-in-interest. Consequently the appeal to the Subordinate Judge was incompetent and the appeal preferred to this Court is equally open to the same objection.
3. In so far as the propriety of the order of the Court of the first instance is concerned, we are of opinion that the case falls within the principle laid down in the case of Ram Narain Routh v. Lal Das Routh 6 C.L.J. 595 : 12 C.W.N. 55 It was pointed out in that case that there is a noticeable difference between the expressions used by the Legislature in Sub-section (c) of Section 170 of the Bengal Tenancy Act and Clause (4) of Section 13 of Regulation VIII of 1819, which deals with similar matters. Under the Putni Regulation, the person who makes the deposit to avert the intended sale not only obtains the position of a mortgages but is also entitled, on applying for the same, to obtain immediate possession of the tenure of the defaulter. On the other hand, Sub-section (1) (c) of Section 171 of the Bengal Tenancy Act does not explicitly state that the depositor is entitled to be placed in possession of the holding upon an application made to the Court. It is not necessary for us to determine on the present occasion: whether, even as between the depositor and the judgment-debtor, this clause may not be construed as embodying merely a statement of the rights of the parties and not prescribing also the procedure for enforcement of those rights. It is plain that in so far as two strangers to the proceeding are concerned, it could never have been intended that the matters in difference between them should be summarily determined in a proceeding under Section 171.
4. The result is that the appeal presented to this Court is dismissed, but the Rule is made absolute and the order of the Court below is discharged as against the petitioner, the usufructuary mortgagee. The order of the lower Court, in so far as it makes the petitioner liable for costs, is also discharged. There will be no order for costs either in the appeal or in the Rule.