1. The facts of this case were as follows: In respect of an occupancy holding there are three co-sharer landlords, Ashutosh Ghose, Sudhansu Bhusan Ghose and Indu Bhusan Ghose, each of the first two owning a four annas share and the last one the remaining eight annas share. In execution of a decree for the eight annas share of the rent due to Indu Bhusan Ghose the holding was sold; and eight annas thereof was purchased by the judgment-debtor's wife and the other eight annas by the petitioner Barkatulla Pramanik. The judgment-debtor then applied to set aside the sale under Section 174, Ben. Ten. Act, but the application was rejected. The sale took place on 24th April 1930. On 2nd April 1931 Ashutosh Ghose applied under Section 26-F, Ben. Ten. Act, to exercise his right of preemption, The Munsif held that so far as the purchase of the eight annas share by the judgment-debtor's wife is concerned there was really no transfer, and so there could be no pre-emption, but that as regards the other eight annas purchased by the petitioner the application for pre-emption should succeed. The petitioner has then moved this Court and obtained this Rule. The application under Section 26-F was filed by Ashutosh Ghose alone. In the body of the application it was stated that the other two persons were co-sharers landlords and their shares and interest were also specified.
2. But the said co-sharers were not made parties defendasts to the proceedings that were to follow, nor was the application framed in such a way as to give them an opportunity to join in the application as co-applicants. In our opinion such an application was incompetent and not fit to be entertained at all in view of the provisions of Section 188 of the Act. Several arguments have been advanced to support the maintainability of the application. It has been argued that the proceedings were not contested by the petitioner in the Court below and that if this objection was taken there, the applicant could have immediately remedied the defect, and that therefore the applicant should now be permitted to amend the application. Section 22, Lim. Act, not applying to the ease, we are not prepared to accede to this argument or prayer, because in our view this is not a ease of mere defect of parties which may be allowed to be remedied, but a question of the competency of the application itself. The application, as framed, was not fit to be entertained at the time it was filed, and if it is now presented in a form which is acceptable it will be an application filed long out of time. It has nest been argued that when the names and other particulars of the co-sharers are to be found in the body of the application, the application should be regarded as being in order, though the necessary prayers were not embodied in it. This argument has been sought to he supported by the analogy of cases under Ch. 10 of the Act of the type of Bir Bikram v. Ambika Charan A.I.R 1926 Cal 1037 and Shiba Kumari v. Doshi AIR 1923 Cal 146.
3. We do not think this argument is well founded, because unlike those cases the present case is one in which the applicant must, in view of Section 188 of the Act, be held to be incompetent to make such an application. Thirdly, it has been argued that the bar imposed by Section 188 of the Act, is meant for the protection of the co-sharer landlords who are not parties to the suit or proceeding, and if they do not object, but purport to waive the objection it is not open to the tenant to take this plea in bar. We are not prepared to agree in this contention. Lastly, reference has been made to the provisions of Section 26F as indicating that if the condition as to deposit has been complied with, the application must be treated as being in order. But we think the section contemplates an application which is not otherwise barred, and Section 188 clearly imposes such a bar. The result is that in our judgment, the rule should be made absolute and we order accordingly. The order of the Court below is set aside and the application under Section 26F referred to above is dismissed. There will be no order for costs.