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Petitioner: ABDUL HALIM BISWAS VS Respondent: RAJJAB ALI KHAN
P L D 1952 Dacca 168
P L D 1952 Dacca 168
Before Ibrahim, J
ABDUL HALIM BISWAS and others‑Decree‑holders Petitioners
Versus
RAJJAB ALI KHAN‑Opposite‑party
Civil Rule No. 576 of 1950, decided on 23rd May, 1951, against an order, dated the 17th August, 1950, passed by the Subordinate Judge, Fourth Court, Bakarganj, in Miscellaneous Appeal No. 8/50 reversing that of the Munsif, 4th Court, Patuakhali, passed in Miscellaneous No. 158/49.
Bengal Tenancy Act (VIII of 1885), S. 66 (2)‑Decretal amount may be deposited by an under‑raiyat.
Clause 2 of section 66 lays down that in a suit for ejectment for an arrear of rent a decree passed in favour of the plaintiff shall specify the amount of the arrear and of the interest (if any) due thereon, and the decree shall not be executed if that amount with the costs of the suit are paid into Court within thirty days from the date of the decree, etc. All that the section requires is that the decretal amount with costs should be paid within 30 days in order to prevent the execution of the decree. It nowhere says that the tender can be made only by the defendant in the suit and not by any other persons whose interests are jeopardised by the decree.
Brojendra Nath Mitra v, Arman Sheikh 27 C L J 478 dissented from.
M. A. Khondkar, for Petitioners.
K. M. Hassan, for Opposite‑party.
ORDER.
IBRAHIM, J.‑---The point I have been invited to consider in this Rule is whether an under raiyat of the second degree can deposit the decretal dues with costs in a suit to prevent execution of a decree fox ejectment passed against his landlord under section 66 of the Bengal Tenancy Act. The petitioners obtained a decree for arrear of rent 'against his non‑occupancy under raiyat Bonomali providing that if the defendant failed to pay the decretal dues with costs within 30 days the decree for ejectment would be executed. This decree was passed on the 6th July, 1948. On the 7th July, the opposite party Rajjab Ali Khan, an under tenant under Bonomali prayed for permission to deposit the decretal amount in Court. The permission was granted and on the 12th July, the challan for the deposit was received and the Court ordered the payment to be credited to the decree and to be noted in the register. But subsequently on the appli cation of the petitioners the decree for ejectment was executed and possession was delivered to them. Rajjab Ali Khan, thereafter, filed a petition on the 25th May, 1949, which pur ported to be under section 151, section 47 and other provisions of the Civil P. C., he contended that the delivery of possession to the petitioners was illegal. The petition was heard and rejected on the 31st December, 1949, on the ground that Rajjab Ali Khan had no locus standi to make the deposit under section 65 (2) of the Bengal Tenancy Act. Rajjab Ali took an appeal from this order of the learned Munsif which was heard by the learned Subordinate Judge of Barisal. The learned Subordinate judge reversed the order of the learned .Munsif holding that Rajjab Ali Khan was entitled to make the deposit. The petitioners, thereafter, obtained this Rule. It is difficult to see how an appeal could lie to the District judge from the order of the learned Munsif, considering that Rajjab Ali Khan was not a party to the suit within the meaning of section 47 of the Code of Civil Procedure. The material question, how ever, is whether the order of the learned Munsif can be sustained. In support of the order, Mr. M‑. A. Khondkar relies on the decision in the case of Brojendra Nath Mitra v. Arman Sheikh 27 C L J 478, where it has been held by a Division
Bench of the Calcutta High Court that section 66 clause (2) of the Bengal Tenancy Act contemplates that the payment made, to be a good payment, must be a payment by or on behalf of the judgment‑debtor and that the Court cannot, therefore, accept the tender of the amount by an under‑raiyat in order to prevent the execution of the decree for the ejectment of the non‑occupancy raiyat. In my opinion, there is absolutely no reason why such a narrow interpretation should be put upon this section. Clause 2 of section 66 lays down that in a suit for ejectment for an arrear of rent a decree passed in favour of the plaintiff shall specify the amount of the arrear and of the interest (if any) due thereon, and the decree shall not be executed if that amount with the costs of the suit are paid into Court within thirty days from the date of the decree, etc. All that the section requires is that the decretal amount with costs should be paid within 30 days in order to prevent the execution of the decree. It nowhere says that the tender can be made only by the defendant in the suit and not by an other persons whose interests ate jeopardised by the decree. The deposit made by Rajjab Ali was a good deposit under section 66 (2).
The order of the learned Munsif must be and is in these circumstances set aside. The Rule is disposed of in these terms without costs.
A. H. Order set aside.