1. In this matter the petitioner obtained a Rule against an order of the Subordinate Judge, 3rd Court, 24-Parganas, in which the Judge refused to entertain an application on the part of the petitioner judgment-debtor for rent on the ground that he had not made the preliminary deposit under Section 174, Sub-section 3, proviso (b), Ben. Ten. Act. The view taken apparently by the learned Subordinate Judge was an extremely commonsense one, but I am inclined to think although I had considerable doubts at first that the construction that he put upon the proviso was erroneous. He seems to have thought that the expression used in the proviso 'shall be allowed' ought to mean and did mean 'shall be entertained' and in taking that view he certainly had the support of a very experienced Judge of this Court, M.N. Mukerji, in Kuloda Prasad Majumdar v. Prativa Nath Roy 1935 Cal 91. I have no doubt whatever that Mukerji, J.'s view that the word 'allowed' should be construed as meaning 'entertained' is an exceedingly sensible one and it would be very much better if the word 'entertained' were substituted in the section for the word 'allowed' because as the section stands at the present time in my view; it is a direct encouragement to frivolous applications. The whole section deals with matters of arrears of rent and if a defaulting tenant is able, as I believe he can under the section, to put in what I may call, for want of a better expression, a rambling application, he can substantially stave off the final compliance with the decree made against him. Unfortunately the meaning of the proviso seems to be subsequently made clear by the specific language employed in the latter part of the proviso which deals with appeals.
2. The words which I consider to be conclusive deal also with the question of deposits and run as follows: 'Provided that where the Court has refused to set aside the sale on the application of the judgment-debtor or any person whose interests are affected by the sale and the amount recoverable in execution of the decree is not in deposit in Court,' (and those are the important words 'is not in deposit') 'no such appeal shall be admitted unless the appellant deposits such amount in Court.' So it can be clearly seen that the latter part of the proviso dealing with the appellate procedure contemplates directly the non-payment of the deposit up till the time that the lower Court has delivered its judgment. It really means that the whole of the proviso read as a whole has this effect, that whereas no deposit need be made on the initial application to the lower Court, no appeal can be preferred unless the deposit has taken place, thus directly postponing the payment of the necessary money before the appeal is heard but allowing the application to be put forward without making any deposit at all. To my mind, the effect of the section is not salutary. It certainly encourages persons of dishonest character to apply to Courts of law on the offchance that they may be successful in their application without giving any security but with the certainty that if they do make the application they will delay the payment of the just dues. For these reasons, I consider that the granting of the Rule is justified and the Rule must be made absolute. I might also note that the learned advocate for the opposite parties here did urge us to consider the question of exercising our discretion on the merits of the application. We should be very willing to do so if the Judge in the Court below had applied his mind to the merits of the case, thus giving us some kind of guidance as to what was to be done. It is quite obvious however from the short order that he passed that he did not consider and had no intention of considering the merits of the case. I consider that the application should be disposed of with all expedition in the Court below.
3. The point which arises for consideration in this Rule was considered by Khundkar, J., and myself, in Gunabbinnessa Choudhrani v. Gopendra Prosad Sukul 1936 Cal 275 in which we reached the conclusion that the point had been correctly decided by Lort-Williams and M.C. Ghose, JJ., in Mofijuddin Muhuri v. Mofijuddin 1934 Cal 491. While listening to Mr. Ghose's arguments on behalf of the opposite party, I have been impressed by the difficulties that beset one in attempting to solve this problem by speculating as to what was the intention of the legislature. It is suggested that that intention was to discourage frivolous applications. Now I could well understand that a provision which required the deposit of a certain sum assessed by the Judge to be awarded to the opposite party in the event of the application being unsuccessful would have a deterrent effect. But I cannot conceive how the deposit of the amount due should necessarily have such an effect: it may be merely a few annas or it may be hundreds of rupees. In a case such as the present where the parties are creditor and judgment-debtor, the creditor is entitled to get it anyhow: in other cases where the parties are not judgment-creditors and judgment-debtors Lort-Williams, J., has pointed out the difficulties that there are in deciding what is to be done with the deposit. In my judgment it is quite impossible to interpret the section from this point of view and the only thing to be done is to examine the language used.
4. My learned brother has pointed out the precise terms employed and I agree with what he has said. To admit an application is not the same thing as to allow it. In proviso (b) the word 'allowed' is used and in Sub-section 5, the word 'admitted' is used. In my opinion that is decisive. I therefore agree that this Rule should be made absolute and the learned Judge directed to proceed with the case according to law. Costs will abide the result; we assess the hearing-fee at two gold mohurs.