1. This is an appeal by the plaintiff in a suit instituted under Section 149 (3) of the Bengal Tenency Act. The plaintiff was successful in the Court of first instance but his claim has been dismissed on appeal by the Subordinate Judge. The landlord-defendant instituted a, suit for arrears of rent against the tenant-defendant in respect of the eleven parcels of land. The tenant pleaded in substance that he was liable to pay rent in respect of nine plots, but that in respect of the other two plots he was not liable to pay rent, as rent had already been recovered from him by the present plaintiff on the allegation that those two parcels were included in a property owned by him. The tenant thereupon paid into Court the entire sum claimed in the suit. Notice was thereafter issued to the present plaintiff, who forthwith instituted this suit under Section 149 (3), Bengal Tenancy Act. The question for decision is, whether Section 149 is applicable to the circumstances of this case.
2. Sub-section (1) of Section 149 is in these terms: When a defendant admits that money is due from him on account of rent but pleads that it is due not to the plaintiff but to a third person, the Court shall refuse to take cognizance of the plea, unless the defendant pays into Court the amount so admitted to be due.' Sub-section (2) then provides that where such a payment is made, the Court shall forthwith cause notice of the payment to be served on the third person. Sub-section (3) lays down that unless the third person, within three months from the receipt of notice, institutes a suit against the plaintiff and therein obtains an order restraining payment out of the money, it shall be paid out to the plaintiff on his application.
3. It is plain that the money mentioned in Sub-section (3) is the entire sum deposited under Sub-section (1) and no question of apportionment is intended to be raised or decided under the section. In the present case, however, it is admitted by the tenant-defendant that part at any rate of that sum is due to the defendant-landlord; what precise part is so due has not been determined, because it involves a question of apportionment not within the scope of the suit. In a case of this description, we are of opinion that Section 149 has no application.
4. The result is that the decree of the Subordinate Judge is affirmed on the ground that the suit is not maintainable under Section 149 and the appeal is dismissed with costs.