Chakravartti, J.@mdashThis Rule is directed against two successive orders passed on the same day by the learned Third Subordinate Judge of Alipore in a certain rent execution case. By the first he held that a deposit made by opposite party 14 was not a belated deposit but one made in time as much as an earlier deposit made by the petitioner and that both had to be considered on their merits. By the second he held that the petitioner had no locus standi to make a deposit in the execution case concerned and the deposit made by opposite party 14 who had such locus standi must be accepted. The petitioner complains that both these orders were illegal and without jurisdiction. The facts of the case are as follows. Opposite parties 1 to 12 hold a permanent tenure under opposite party 13 in respect of which the latter obtained, on 24th June 1943, a rent decree for Rupees 4829 and 11 annas. On 18th January 1943, opposite parties 2 to 5, who hold an undivided half share in the tenure, entered into an agreement with the petitioner for a sale of their share to him for a sum of Rs. 8000. A sum of Rs. 1000 was paid as earnest money and the document, which was a registered one, provided that there would be a charge for the earnest money on the property agreed to be conveyed. On 29th May 1944, opposite party 13 applied for execution of the rent decree, claiming to recover a sum of Rupees 4329.11-0 a sum of Rs. 500 having been realised by a previous execution. Thereupon the Court ordered the issue of a combined order of attachment and sale proclamation, fixing the 12th July 1944, as the date of sale. On 4th July, opposite party 14, Kamal Prava, who claimed to be an under-tenure-holder, applied for permission to deposit the decretal dues and costs under the provisions of S. 170, Ben. Ten. Act. The application was directed to be placed for hearing on 8th July following. On 5th July the petitioner made a similar application and this too was directed to be placed for hearing on 8th July. On that date, the learned Judge heard the parties and passed the following order :
Heard Pleaders for both the petitioners. The petitioner Durga Das Kuthi is permitted to deposit the decretal amount as stated in the sale proclamation at his own risk. As permission is given to the petitioner Durga Das Kuthi, the petition of Kamal Prava is kept filed with the record.
The petitioner made his deposit on 11th July. On 12th July which, it will be remembered, was the date fixed for the sale, opposite party 14 made a fresh application, praying for acceptance from her of the decretal dues with cost and the learned Judge directed the application to be placed for hearing on 22nd July. The petitioner and the decree-holder both filed objections to the application. On 22nd July, opposite party 14 led some evidence in proof of her status, but as the pleader for the petitioner was absent, the learned Judge passed an order, granting permission to opposite party 14 to make a deposit "at her own risk" and adjourning the matter to 29th July for the hearing of the objections. In pursuance of that order, opposite party 14 deposited the requisite amount on 24th July. The case could not be taken up on 29th July and was adjourned till the 2nd August. On that date a preliminary objection was raised on behalf of the petitioner to the effect that the Court, having once granted permission to him to make a deposit, had no authority to grant a similar permission to opposite party 14 on a later date. By the first order passed by him, the learned Judge overruled the objection and held that the petitioner had only been permitted to make a deposit conditionally, as had been opposite party 14, but the question as to whose deposit was good and valid, remained to be considered. Proceeding next to deal with the case on merits, the learned Judge, by a second order passed on the same day, held that the petitioner was not entitled to make a deposit inasmuch as he had no "existing interest in the land of the tenure" and since, in his view, opposite party 14 had such an interest, he held that the deposit made by her should be accepted. By a third order, also passed on the same day, he recorded acceptance of the deposit and disposal of the execution case on full satisfaction. Thereupon, the petitioner obtained the present rule against the first and the second orders referred to above, Mr. Das, who appeared for the petitioner, contended that the learned Judge was wrong in holding that in order that a person might be entitled to make a deposit under S. 170, Ben. Ten. Act, he must have an existing interest in the land of the tenancy. The section, it was pointed out, only required that his interests must be affected by the sale and the interests of the petitioner, it was contended, were so affected in the present case. Mr. Das contended in the second place that if the petitioner was competent to deposit the decretal dues and costs, as in law he was, then after he had been permitted to make the deposit and had made it, there was no longer any subsisting order for sale, against which any other person could make a subsequent deposit. Besides, the order passed on 8th July, amounted, so it was argued, to a dismissal of the application of opposite party 14. Accordingly it was contended that the learned Judge erred in permitting opposite party 14, to make a deposit by a subsequent order and in accepting her deposit in preference to the petitioner''s, he erred further.
2. Mr. Das also pointed out that the sale was due to take place on 12th July. The petitioner made his deposit on 11th July, but opposite party 14 did not make hers till the 24th. On these facts it was argued that it was by the petitioner''s deposit that the sale was avoided and it was he who was entitled to the statutory privileges.
3. Mr. Mukherjee who appeared for opposite party 14, did not challenge the contention of Mr. Das that the interests of the petitioner were affected by the sale, but contended that the question did not require decision. He submitted that assuming the petitioner and opposite party 14 were both competent to make a deposit, the latter, who had applied earlier was entitled to preference as between the two. It was argued that no final order was passed on 8th July, when the petitioner was only permitted to make a deposit ''at his own risk'' and that the order for sale was alive till the 2nd August when only one of the deposits was finally accepted. Accordingly it was contended that the learned Judge had committed no error either in permitting opposite party 14, to make a deposit by his order of the 22nd July or in finally accepting the deposit made by her. It seems to me that the question whether the interests of the petitioner were affected by the sale is by no means irrelevant. If they were not affected, the petitioner was not competent to make a deposit at all and if he was not, there would be no question to be decided between him and opposite party 14, about whose competence no contention was raised either before us or in the Court below. Mr. Mukherjee, however, was prepared to proceed on the footing that the petitioner was competent to make a deposit and in view of that concession, it is not necessary for us to consider the reasons given by the learned Judge for his finding against the petitioner. But I may add that if a decision was asked for, I would be prepared to hold that the learned Judge was clearly wrong and the petitioner was undoubtedly a person whose interests would be affected by the sale. It will appear from what has been stated above that the only question calling for our decision is the question raised by the second contention of Mr. Das. That question is whether, assuming the petitioner and opposite party 14 were both competent to make a deposit, the learned Judge was justified in the circum. stances of the case in permitting a deposit to be made by opposite party 14, and in finally accepting it. Mr. Das contended that he was not justified, first because by his order dated 8th July, he had already dismissed the application of opposite party 14, and secondly, because as soon as a deposit was made by the petitioner on 11th July, the order for sale was gone and with it disappeared the occasion for anybody making any further deposit.
4. I feel bound to say that the situation which one finds in this case was created entirely by the inappropriate and ill-expressed order which the learned Judge passed on 8th July. On that date, he had before him two applicants for permission to make a deposit, and he decided the claim of neither. Yet, he permitted one of them, who had made his application later, to make a deposit while he directed the application of the other, which had been made earlier, to be "kept filed with the record," whatever that might mean. If his intention was to permit both the applicants to make deposits conditionally, subject to their rights being decided thereafter, as he subsequently declared it to have been, one does not see why be could not pass a straightforward order to that effect, granting permission to both the applicants at the same time and on the same terms. Instead of doing so, he discriminated between the two applicants. And worse than, that, he gave as his reason for his direction regarding the application of opposite party 14 the fact that be was permitting the petitioner to make a deposit-a circumstance which lends some countenance to the argument of Mr. Das that the learned Judge really rejected the other application.
5. But however unsatisfactory the order may have been, I am unable to hold that by it the application of opposite party 14 was dismissed. The terms of the order have been set out above and they do not show that the learned Judge was disposing of the application. They rather show that he was simply putting it away. There is the further circumstance that the petitioner was permitted to make a deposit, not finally but ''at his own risk,'' and the risk contemplated by that language may well have been not merely the risk of a finding that the petitioner did not possess the requisite status or that his deposit was insufficient, but also the pendency of the rival application by opposite party 14, which might ultimately succeed. Considering the order as a whole, I am of opinion that its effect was not to dismiss the application of opposite party 14. The first argument advanced by Mr. Das in support of his contention, therefore, fails.
6. As regards the second argument of Mr. Das, there is a case decided under the Revenue Sales Act to which he did not refer, but which would seem, at first sight, to support his contention. Section 14, Revenue Sales Act, provides that if, on a defaulting share, held on a separate account, being offered for sale, no bid sufficient to meet the arrears be forthcoming,
the Collector.... shall stop the sale and declare that the entire estate will be put up to sale for arrears of revenue at a future date, unless the other recorded sharer or sharers, or one or more of them, shall within ten days purchase the share in arrear by paying the Government the whole arrear due from such share.
With reference to this section, it was held by Mukherjea and Roxburgh JJ. in 44 C. W. N. 129 Kamal Krishna v. Hemendra Krishna (''40) 27 A. I. R. 1940 Cal. 39 : 187 I. C. 286 : 44 C. W. N. 129 that if several of the non-defaulter cosharers made deposits of the arrears at different times, but all within the statutory ten days, there would be an effective purchase only by the first of them and the rest would acquire nothing. The reason given was that the declaration by the Collector was in the nature of an offer and as soon as the first deposit was made, there would be an acceptance of the offer and a completed sale, so that there would be nothing left to be sold to the subsequent depositors or for them to buy. The argument advanced by Mr. Das was similar. It was contended by him that as soon as a sufficient deposit by a competent person was made under S. 170, Bengal Tenancy Act, the order for sale would cease to exist and the depositor would become a statutory mortgagee under the provisions of S. 171. There would be nothing left with respect to which anybody could thereafter be permitted to make a deposit or could make a deposit.
7. I do not think that the principle laid down in the case above referred to would apply in a case of several deposits made under S 170, Bengal Tenancy Act. It is true that the subsistence of an order for sale is a condition precedent to an effective deposit; but there is no offer contained in S. 170, like the one contained in S. 14, Revenue Sales Act, and it seems to me that the order for sale cannot and does not disappear simply by reason of the fact that someone makes a deposit. When the holder of a decree for rent applies for its execution by sale of the tenure or holding, the Court, if admits the application, must "order execution of the decree according to the nature of the application" under O. 21, R. 17, Civil P. C. In other words, it must make an order for sale. The provision next to be considered is S. 163 (1), Bengal Tenancy Act. That section lays down that if the Court orders execution of the decree as applied for under O. 21, R. 17, it shall issue a combined order of attachment and proclamation. It is when making this order and issuing the sale proclamation that the Court fixes a date for sale, but this fixing a date for the sale is something different from and subsequent to the order for sale made under O. 21, R. 17. Coming nest to S. 170, that section, to quote only the material portion, provides that when an order for sale in execution of a decree has been made the tenure or holding shall not be released from attachment, unless the amount of the decree, together with costs, is paid into Court and the section goes on to say that the judgment-debtor or any person whose interests are affected by the sale, may pay money thereunder. It seems to me that when S. 170 speaks of an order for sale, it refers to not the order under S. 163 (1) fixing the date for the sale, but the initial order for execution of the decree by sale, made under O. 21, R. 17, Civil P. C. That order is not extinguished by simply a deposit being made. It is true that when the decretal dues, together with costs, are put in, the advertised sale does not take place, as it did not in the present case; but if the deposit be found to be insufficient or the depositor not to be a competent person, another sale may yet be held and that in pursuance of the original order for sale, whether with or without a fresh sale proclamation. Till a deposit is accepted and the execution case dismissed on full satisfaction, the order for sale remains, although the particular sale advertised may fall through. My view, therefore, is that the order for sale referred to in S. 170, Ben. Ten. Act, by which is meant the initial order for execution of the decree by sale made under O. 21, R. 17, Civil P. C., is not extinguished automatically as soon as a deposit, purporting to be of the decretal dues and costs, is made, but subsists till a deposit is finally accepted by the Court; and consequently, so long as it subsists, all persons competent to deposit the decretal dues and costs, may, under the terms of the section, make independent deposits. It follows that when opposite party 14 was allowed on 22nd July to make a deposit, she was rightly so allowed. The second argument advanced by Mr. Das also fails. But when several persons make valid deposits, each on his own account, by what principle is the question of priority as between them to be decided : The statute contains no provisions bearing upon the point and, in my view, equitable considerations must be applied. It is elementary that equities rank in order of time. When, therefore, several persons, each competent to make a deposit, make sufficient and timeous deposits but at different times, the one making the first deposit must, on equitable grounds, be given preference and his deposit must be accepted. In the present case, the actual first deposit was made by the petitioner and on the principle above stated, he would be entitled, in the absence of other circumstances, to have his deposit accepted. But there is another principle, viz., nobody must be prejudiced by an act of the Court and, in my view, the circumstances of the present case attract its operation. Although the petitioner made the first deposit in fact, opposite party 14, applied for permission to deposit before him and had her application been allowed then or even simultaneously with the application of the petitioner, she might easily have made her deposit first. There was no reason whatever why the Court should have postponed the consideration of her earlier application till long after it had allowed the later application of the petitioner and till after the petitioner had made his deposit and thereby prevented her from making her deposit first. She was ready with the money on 4th July and also on the 12th and it was solely by the act of the Court that she was prevented from making her deposit earlier than the 24th To the principle of equity above stated, I would add a corollary, viz., when the person first applying to make a deposit is prevented by an act of the Court from making his deposit first, his deposit, when made, must be deemed to be the first deposit Accordingly, the deposit made by opposite party 14 in the present case must be deemed to be first deposit and in accepting it in preference to the petitioner''s, the learned Judge acted rightly, although the reasons on which he acted are wrong. In the result, the rule is discharged, but, in the circumstances of the case, I would make no order as to costs.
Akram, J.
8. I agree.
