1. This application has arisen out of an order of the munsif holding that the petitioner as a usufructuary mortgagee is not entitled to make a deposit under Section 52 of Act 8 of 1869 for the purpose of staying execution of a decree for ejectment for non-payment of arrears of rent. It turns on the question whether a mortgagee of a non-transferable occupancy holding is entitled to make such a deposit under Section 52, Act 8 of 1869 for the purpose of staying execution of a decree for ejectment of the tenants on account of non-payment of arrears of rent. It has been held in the case of Kali Kishore v. Gopal Ram  23 C.W.N. 132, that a transferee of a portion of a nontransferable occupancy holding is entitled to make such a deposit. On the other hand it has been held in the case of Baneswar Singh v. Abdul Hassan : AIR1927Cal752 that the purchaser of a non-transferable occupancy holding is not entitled to make such a deposit and again in the case of Shailaja Sundari Bai v. Surja Kanta Chaudhuri : AIR1929Cal133 it has been held that the mortgagee of a portion of a non-transferable occupancy holding is entitled to make the deposit.
2. The case of a mortgagee differs from that of a transferee inasmuch as in the case of a mortgagee the tenant still retains an interest in the holding and if the circumstances are such that the deposit can be regarded as made on behalf of the tenant, then certainly the mortgagee would be entitled to make the deposit. But I am of opinion that under Section 52, Act 8 of 1859 it was ''contemplated that the deposit must be made by the tenant or on his behalf. We find this is the construction which has been put upon Section 66(2), Bengal Tenancy Act where the wording is similar cf. Brojendra Nath v. Arman Shaikh  27 C.L.J. 478. There does not appear to be any reason why in the case of a non-transferable holding the landlord should be forced to receive a deposit from a stranger whose interest he is not bound to recognize unless this is specially laid down in the Act. In Section 170, Bengal Tenancy Act, Clause (2) of which is similarly worded, Clause (3) has been added to show that not only the judgment-debtor but any person having an interest in the holding voidable on the sale may make the deposit to relieve the holding from attachment and, under this clause it has been held that while a transferee cannot make the deposit a mortgagee can do so. If it is intended by Section 170 (2) that any one can make the deposit the addition of Cl (3) would be meaningless as already under Clause (2) the person referred to therein or any other person could make the deposit. Clause (3) is apparently to enlarge the category of persons who can make the deposit which otherwise would have been limited to judgment-debtors. As the learned Judges in Kali Kishore's case  23 C.W.N. 132 pointed out the decision in Sarada Prasad v. Nobin Chandra  Marshall's Rep. 417 may have referred to transferable holdings so that it is not necessarily an authority for the proposition that the transferee of a nontransferable holding is entitled to make the deposit. The learned Judges in Kali Kishore's case  23 C.W.N. 132 followed the decision in Inder Pershad Singh v. Campbell  7 Cal. 474 (which was however under Section 78 of the Act) and relied rather on the wording of the section itself and the principles laid down in the case of Dayamoyi v. Ananda Mohan  42 Cal. 172. These were more directly applicable to that particular case inasmuch as it was held in Dayamoyi's case that the transfer of a part of an occupancy holding does not entitle the landlord to evict the purchaser.
3. There is a good deal to be said from the point of view of equity for the construction which has been put upon the section by the learned Judges in Kali Krishna's case and by Mallik, J., in Shailaja's case but with the greatest respect I think that the view adopted by the learned Judges in Baneswar's case is the correct one and their reasoning would also apply in the case of a mortgagee of a non-transferable occupancy holding.
4. The Rule is accordingly discharged with costs one gold mohur.
5. This judgment will govern Civil Revision Case No. 1621 of 1928 which is also discharged with costs one gold mohur.
6. I agree. I wish to add that it seems to me that when a learned Judge of this Court sitting singly is unable to follow a decision of a Division Bench the better course for him is to send the case to a Division Bench and not to pass a dissentient judgment which governs only the case in which it is passed. I need not give my reasons here in support of this procedure I have suggested but they are many.