1. The main question that arises for consideration in this rule is whether the mortgagee of a non transferable under-raiyati holding has any locus standi to deposit money Under Section 66, Clause (2), Ben. Ten. Act, in order to stay execution of a decree for ejectment on the ground of non-payment of arrears of rent. What happened in the case was this: The plaintiffs filed a suit against the defendant, an under-raiyat, for recovery of arrears of rent and obtained a compromise decree, which laid down that in default of payment of a certain portion of the decretal money within a specified time, the defendant would be ejected from the holding. One Mohinimohan Shaha, a mortgagee of the under-raiyati holding, offered to deposit the money but was not allowed to do so. It was contended on his behalf that Mohinimohan Shaha, the mortgagee, had a locus standi to deposit the money, and in support of this contention reliance was placed on the decisions in the case of Kali Kishore Das v. Gopal Ram AIR 1919 Cal 195 and in the case of Radhamohan Mundul v. Buckshee Begum (1863) Marsh 471, as also in the case of Sailaja Sundari Rai v. Surja Kanta : AIR1929Cal133 . The case of Sailaja Sundari Rai v. Surja Kanta : AIR1929Cal133 is a decision of a single sitting Judge, and as regards the cases of Kali Kishore Das v. Gopal Ram Saha AIR 1919 Cal 195 and Radhamohun Mundul v. Buckshee Begum (1863) Marsh 471, both were considered and dissented from in an elaborate judgment in the case of Baneswar Singh v. Abdul Hassan : AIR1927Cal752 , where it was held that a tender cannot be made by any person other than the tenant himself or some one on his behalf. To the same effect are the decisions in the case of Brojendra Nath Mitra v. Arman Sheikh AIR 1918 Cal 132 and the recent case of Raj Chandra Datta v. Habij Md. : AIR1929Cal572 to which one of us was a party.
2. As pointed out in the case of Raj Chandra Datta v. Habij Md. : AIR1929Cal572 if it was the intention of the legislature to allow the mortgagee of an under-raiyati holding to make a tender Under Section 66, Clause (2), Ben. Ten. Act, one would expect in the section a provision similar to the provision in Section 170, Sub-section (3). On the authority of the decision in Brojendra Nath Mitra v. Arman Sheikh AIR 1918 Cal 132, and Baneswar Singh v. Abdul Hassan : AIR1927Cal752 and Raj Chandra Datta v. Habij Md. : AIR1929Cal572 , I would hold that the petitioner mortgagee had no locus standi to deposit the money, and that being so I would discharge the rule with costs, hearing fee being assessed at one gold mohur.
3. I agree.