1. This Rule is directed against an order passed by the Munsif, First Court, at Alipur, under Section 26-F, Ben. Ten. Act. The opposite party in the Rule, as the landlord, applied to the Court for exercising his right of preemption as contemplated by law, in the case of a sale of a part of a holding to the petitioner. It appears from the materials before us that the landlord applicant did not, at the time of making the application for pre-emption, deposit in Court the amount of the consideration money together with the statutory compensation as required by the mandatory provisions of Section 26-F, Ben. Ten. Act. On examination of the record, it is apparent that the chalan for the amount required to be deposited on 28th August 1933, the date on which the application for pre-emption was filed in Court, was filed on the next date, 29th August.
2. In the circumstances therefore there was no alterative left for the Court other than to dismiss the application made by the landlord. The law is imperative on the point, and expressly provides for the dismissal of the application for pre-emption unless at the time of making the application, the deposit as required by Section 26-F (2), Ben. Ten. Act, is made by the applicant. The Munsif instead of complying with, the provision of the law as contained in the section referred to above, held that 'the deposit though late by one day' was within two months from the service of notice on the landlord of the transfer, in respect of which the right of pre-emption was sought to be exercised. We are wholly unable to accept the view taken by the Court below in the case before us; and in our judgment the decision of this Court in the case of Jatindra Kumar Chakrabarty v. Chandra Kumar 1934 Cal 661 cited before us in support of the order of the lower Court has no application in the present case. In the case mentioned above, the landlord on the date of filing his application for pre-emption under Section 26-F, Ben. Ten. Act, also filed along with it chalan for the deposit of the money required to be deposited under the law. On the facts of the case before us, the only course open to the Court below was the dismissal of the application, as enjoined by which the application for pre-emption 'shall be dismissed' unless the landlord at the time of making the application deposits in Court the amount of the consideration money for the transfer in regard to which the right of pre-emption is sought to be exercised together with compensation at the rate of 10 per cent of such amount.
3. As our decision on the question referred to above disposed of the case, before us, it is not necessary to discuss the other points raised in support of the Rule. The decision and the order passed by the Court below on 16th February 1934, cannot be upheld and it is set aside, with the result that this Rule is made absolute, and the application for pre-emption on which Misc. Case No. 240 of 1933 in the Court of Munsif at Alipbre, was started, is dismissed. The petitioner in this Court is entitled to his costs in the Rule; the hearing-fee in the Rule is fixed at two gold mohurs.