1. The question for determination in this Rule is whether the petitioner is entitled to make a deposit under the provisions of Section 170(3) of the Bengal Tenancy Act. The petitioner, Rani Brindarani Choudhrani, purchased a permanent tenure of the judgment-debtors in the year 1306, that is, long before the period in respect of which the arrears of rent have now been decreed. In that view, and having regard to the authority of the case of Jotindra Mohan Tagore v. Durga Dabe 10 C.W.N. 438 the Munsif has directed the tenure to be sold and refused to consider the deposit actually made by the Rani as good and valid deposit.
2. The petitioner, manifestly, is not a judgment-debtor within the intent of Section 170(3). The arrears of rent have been decreed as due from other persons against whom the landlord brought his suit. The petitioner, also, does not represent the judgment-debtors because the tenure was transferred before the decree made in the rent suit. For the same reason, the petitioner cannot be said to have any interest voidable on the sale to be held in execution of the rent-decree. That decree does not affect the interest, if any, of persons who were not parties thereto. The tenure is not an encumbrance on itself, it has been transferred in its entirety to the petitioner. We, therefore, think that the case relied on by the Munsif justifies his order so far as it holds that the petitioner cannot bring her case within the strict language of Section 170(3).
3. Our attention has been called to two other cases on this point. But in Radhika Nath Sarkar v. Rakhal Raj Gayen 13 C.W.N. 1175 : 10 C.L.J. 473 : 3 Ind. Cas. 835 the decision in Jotindra Mohan Tagore v. Durga Dabe 10 C.W.N. 438 was not cited or considered, while in Jugal Mohini Dasi v. Srinath Chatterjee 12 C.L.J. 609 : 7 Ind. Cas. 477 the learned Judges thought the observations in the earlier case were obiter. They, however, adopted the same procedure and permitted the deposit to be made on the ground that, on a previous occasion, the landlord had withdrawn a sum similarly paid in by the claimant under Section 170(3) of the Act, We see no reason why the Rani, the petitioner before us, should not be granted a similar indulgence.
4. It appears that, on the 9th October 1909, the petitioner was allowed to make a deposit of the money then due and decreed 'at her own risk.' That was done and the decree-holder took out the sum deposited. Again, on the 12th March 1910, the same procedure was observed though nothing was then said as to the deposit being made subject to all just exceptions. The landlord withdrew the money, as before.
5. In these circumstances, it seems to us that the decree-holder having accepted previous deposits and there being a contest between the parties as to the composition of the tenure concerned, we are justified in interfering.
6. The order of the Munsif, dated the 7th July 1911, is set aside. The petitioner deposited the money but there is an order for refund. If the money has been taken back the petitioner may make the deposit as prayed. On such deposit being made within a time to be fixed by the Munsif, the sale will not be held, otherwise the proceedings will continue. If no refund has been made, the Munsif will pass the necessary orders for due appropriation of the sum paid in, and stay the sale.
7. The Rule is made absolute with costs. We assess the hearing fee at two gold mohurs.