Mosafir Lal Das and another vs Ganesh Jha and other

Coutts, J.—The facts of this case are shortly as follows : The defendants, second party, had an occupancy holding which they had mortgaged to the defendant, first party. In 1916 the landlord obtained a decree for rent. The defendant No. 1 paid up this decree to the landlord. On the 1st of November, 1917, the plaintiffs purchased the property from the defendants, second party, and obtained possession. On the 19th of November the defendant No. 1 filed an application for possession under S. 171 of the Bengal Tenancy Act and in December of the same year got possession. The plaintiffs brought this suit for a declaration that the defendant, first party, had no right to possession, and for delivery of possession to them by evicting the defendant, first party. The suit was contested by the defendant, first party. It was partly decreed by the Court of first instance; the defendant, first party, appealed and on appeal the decree was modified to the extent that the plaintiffs were given a decree for redemption of the mortgage. The plaintiffs have appealed to this Court. The only point which is really urged in this appeal is that S. 171 of the Bengal Tenancy Act has no application to the present case inasmuch as the money was not paid into Court by the defendant, first party, as required by that section. What in fact happened was that the defendant, first party, asked permission to deposit the money in Court, the Court instead of granting that permission allowed the defendant, first party''s to pay directly to the plaintiffs and this was done. The learned District Judge has found that this is tantamount to payment into Court as required by Art 171 of the Bengal Tenancy Act and in my opinion this is so.

I would accordingly dismiss this appeal with costs.

Das, J.

I agree.