Roxburgh, J.@mdashThis Rule raises an interesting question u/s 171 of Bengal Tenancy Act, on which apparently there is no previous decision. The depositor u/s 171 of the Act was put into possession by the order of the executing court following the procedure approved of in the case of Umatul Fatima v. Nemai Charan Banerji (1940) 6 C.L.J. 592 (594). The present Applicant, being the original judgement-debtor, moved the court to obtain possession again of the property on the ground that the period specified in Section 171(7)(c) had expired, namely, that during the period the debt with interest due thereon has been discharged.
2. The learned munsif has held that the Applicant''s remedy is byway, of a suit and has, therefore; rejected the application.
3. The Act itself provides no explicit procedure either as to how the depositor is to be put into possession, or how, as in the present case, he is to be removed from possession. The former question has been settled by the case cited. The learned Judges remarked:
We think there is nothing in the section itself to indicate that it is necessary that a person who has paid money under the section should bring a separate regular suit to obtain possession. We are of opinion that it was the intention of the legislature that, on payment of the sum, the person making the payment should, on application to the Court, be entitled to be placed in possession of the tenure, and we think that, to hold the contrary view, namely, that such a person should be bound to bring a regular suit to obtain possession would, in fact, defeat the object of the section itself.
4. It seems to me that the same argument applies as regards the second question, and, indeed, that it is a corollary to the view that the depositor is entitled to be put into possession by way of application, that when the debt has been discharged he may be removed by the executing court on an application.
5. On behalf of the opposite party, it is contended that when the deposit is made the executing court is functus officio, that the question of restoration of the judgment-debtor to possession is not a question arising u/s 47 of the CPC between the parties and that, therefore, the Applicant''s remedy is by way of a suit. It seems to me that the same argument would dispose of the view taken in the case cited on the question of the proper procedure for giving possession to the depositor. Once he has made his deposit the decree has been discharged and the court is functus officio. I think following the line of argument adopted in that case, the correct view to take of Section 171(2)(c) is that, on application to the executing court, the depositor is to be put into possession conditionally to remain there until such time as the debt is discharged, and that it is within the competence of the court which puts the depositor in possession to remove him when satisfied that the debt has so been discharged, it is all part of the execution process.
6. In the case of Ram Narain Routh v. Lal Das Routh (1907) 12 C.W.N. 55, there was some discussion of the earlier case, and it was pointed out that, where a third party claimed to be interested in the holding, the proper remedy for the depositor was by way of a suit. In the present case there is no question of any third party.
7. I make the Rule absolute. The executing court will proceed to deal with the application on its merits.
8. I make no order as to costs.
