ORDER
1. This application in revision by the judgment-debtor is against orders passed by the Dist J., of Midnapure dismissing an appeal preferred under Section 174 (5), Bengal Tenancy Act.
2. The decision in this appeal depends upon an interpretation of the proviso to Sub-Section (5) of Section 174, Bengal Tenancy Act, & more particularly of the concluding words namely 'no such appeal shall be admitted unless the appellant deposits such amount in Court'.
3. The application filed by the judgment-debtor under Section 174 (8) of the Act was disposed of by the Subordinate Judge by an order dated 10-5-1948, dismissing the same. After allowing time taken for obtaining a certified copy of the judgment, the last date for filing the appeal was 20 6-1948, On the day previous, namely, June 19, a, memorandum of appeal was presented on behalf of the judgment-debtor, in the Court of the Dist. J. along with a petn. stating that the applt. had not been able to collect the amount required to be deposited under the proviso to Sub Section(s) of Section 174, Bengal Tenancy Act. The form in which the prayer was made was that the admission of appeal may be put off for a month. This petition was ordered by the Court to be put up on June 21, for orders, on which date the prayer for extension of time was rejected 'as the alleged reason for the prayer is frivolous.' Immediately thereafter the Court recorded the following order : 'The necessary deposit has not yet been made; this application, therefore cannot be entertained & is rejected.'
4. As explained by the learned Dist. J. in a subsequent order, dated 9-7-1948, he intended by the above order that the appeal be dismissed & not merely the application for time Mr. Banerji argues that the deposit required to be made under S 174 (5), Bengal Tenancy Act, has to be made before the appeal can be admitted. Therefore, until the appeal is taken up for hearing under Order 41, Rule 11. C. P. C., the conditions imposed about the deposit need not be fulfilled It will be sufficient if such deposit is made before the preliminary hearing & thus before the appeal is admitted. It is contended that the Court is not entitled to act judicially by admitting the appeal until & unless the deposit is made. Filing of the memorandum & registering the appeal in the office are merely administrative acts, whereas, admitting an appeal after the preliminary hearing is a judicial act. So it is within the competence of the appellate Court to accept the deposit if made before the preliminary hearing even though such hearing may be beyond the period of 80 days within which an appeal is required to be filed.
5. Dr. Sen Gupta on the other hand contends that an appeal must be taken to be admitted when the memorandum is filed in the office of the Ct. In support of this contention he relies upon what he thought to be two decisions by Edgley J. reported in Sudhir Chandra Nag v. Nazir Mamud, 43 C. W. N. pp. 106 & 276.
6. I may note in passing that although two decisions are purported to have been reported it was overlooked that the same judgment by Edgley J had been published twice. I have not been able to find out why this is so particularly when the one printed first was the more correct one.
7. The earliest decision on this point is that of Dakhaja Mohan v. Mattar Rahman, 42 C. W. N. 646. S. K. Ghose J., held that an appeal presented on the last day of limitation without making the deposit required under Section 174 (5), Bengal Tenancy Act, is incompeteat. Be purported to follow an unreported earlier decision of his in C. R. 829 of 1937 decided on 25 8-1937. He also observed that a Bench decision Bidhubala Dassi v. Kumud Nath, 41 C.W.N. 1299 was an authority for the proposition that the deposit must be made before an appeal can be entertained at all. Following S. K Ghose J., it was held by Edgley J., in Sudhir Chandra v. Nazar Mamud, 43 C. W. N. 106 & Bhagaban Chandra v. Satia Bewa. I. L. R. (1939) 2 Cal. 49 that the deposit of the decretal amount as contemplated under the proviso to Section 174 (5), Bengal Tenancy Act, must be made before an appeal under that section can be registered or entertained. He also purported to follow, the Bench decision reported in 41 C. W. N. 1299, to which he himself was a party.
8. It is. therefore, necessary to consider, in the first place, what was required to be & was actually decided in Bidhubala Dassi v. Kumud Nath, 41 C. W. N. 1299. The question in this case arose in connection with an appeal from an original order filed in this Court by the judgment-debtor on 22-4-1937. According to the rules of this Court, the Stamp Reporter examined the memorandum filed, & on the nest day he submitted his report. On 27th April' it is recorded in the Order Book of the appeal that the 'Appeal now in form. Register & post for hearing under Order 41, Rule 11, C.P.C.' On 1-5-1937, another entry was made in the order book 'appeal registered'. On 28th May, the appeal was set down for hearing under Order 4l, Rule 11, C. P. C. & was admitted with the usual order recorded that the appeal would be heard; there was a further direction given expediting the preparation of the paper book. When, however, after notice to the. respondent the appeal came up for hearing, objection was raised on behalf of the resp. to the effect that the appeal was incompetent on the ground that the appellant had not upto that date namely, the date of final hearing, deposited the amount as required under Section 174 (5), Bengal Tenancy Act.
9. It was not a matter for consideration in that case as to whether it would have been sufficient in law if the deposit had been made before the preliminary hearing under Order 41, Rule 11, Civil P. C. as dearly no deposit had been made before such preliminary hearing. So, although, it would have been sufficient for the Court to dispose of the appeal on the short ground that as admittedly the deposit had not been made even after the preliminary hearing, the mandatory provisions of 8. 174 (5), Bengal Tenancy Act, had not been fulfilled. But the learned Judges proceeded to make certain general observations & concluded in the following terms at p. 1800 of the Report:
'It is, in our opinion, not open to argument that the position is otherwise than that where an appeal is preferred against an order dismissing the application to set aside a sale, the deposit must be made as required by Sub Section (5) before the appeal can be entertained at all.'
10. The Court further held that at the final hearing it had no jurisdiction to allow the deposit to be made at that state. This decision must be taken along with the facts of this particular case & the general observations as regards the deposit of money after the filing of the appeal & before the preliminary hearing of the appeal are all obiter & this case cannot be taken to be a binding authority on the general question.
11. There is no other Bench decision directly covering the point now before us. There are some decisions by Judge sitting singly as noted already 8. K. Ghose J. thought in Dakhaja Mohan v. Mattar Rahman, 42 C. w. N. 646 that if the deposit was not required to be made along with the memorandum it will be overriding the law of limitation to register & entertain the appeal on the deposit being made subsequently. But the period of limitation within which the appeal is to be filed may be different from the period within which the required deposit is to be made. If reference is made to Sub Section (s) of the same section, it will be noticed that although the application may be filed within six months from the date of the sale, the date within which the deposit is required to be made is a much later one & the application for setting aside the sale is not to be allowed before such deposit is actually made. The period of limitation fixed for filing the appeal may or may not according to the language used in the Statute, determine the period within which the deposit is to be made. If the memorandum is filed & registered within the period of limitation, the question when the deposit is to be made will have to be fixed with reference to the date when the Court 'admits' the appeal. The decision must, therefore, rest on an interpretation of the word 'admitted' whether filing the memorandum in the office or the subsequent registration of the appeal or the preliminary hearing under Order 41, Rule 11, Civil P. C. is to be taken to be admitting the appeal. This aspect of the question was not considered in the decision just now referred to. In Sudhir Chandra v. Nazir Mamud, 43 C. W. N. 106, it is observed:
'in my view 3. 174 (5) of the Act contemplates that the amount recoverable in execution of the decree must be deposited with the appellate Court immediately after the presentation of the appeal to the Court in question & before its registration.'
Filing of the memorandum was not, therefore, considered to be admitting the appeal. Edgley J. proceeded on the basis that registering the appeal under Order 41, Rule 9, Civil P. C. in a register which is to be maintained must be regarded as ''an admission of the appeal.' He relied on the Bench decision referred to, to which he was himself a a party.
12. To the same effect is a decision in Bhagaban Chandra v. Sativa Bewa, I. L. R. (1939) 2 Cal. 49. The deposit must be made before the appeal can be ''entertained.' An appeal is admitted when the ministerial officer of the Court accepts the memo, of appeal & endorses thereon the date of the presentation.
13. An attempt was made before us to compare the provisions of Sub Sections (8) & (5) of Section 174, Bengal Tenancy Act, for elucidating the meaning of the word 'admitted' in the proviso to the latter clause. We do not think this sub Section (3) is of assistance to the decree-holder. That sub-section deals with a different stage altogether & it is specifically provided that the deposit under that sub-section as required to be made is to be before the application is allowed-that clearly indicates that only after the Court has gone through the proceedings & has come to the conclusion that the application should be granted that the judgment-debtor may be required to deposit the amount of such deposit for having the sale set aside. The deposit is not required to be made with the application when filed in Court, Sub-Section (5), on the other hand, contains different provisions altogether. As noticed already, the deposit is to be made before the appeal is 'admitted.' The expression 'admission' of appeal is not explained in the Bengal Tenancy Act. But in Rule 9 of Order 41 of the Code there is an expression 'memorandum is admitted.' A question may arise whether admitting the memorandum is the same as, or different from, admitting the appeal. Admitting the memorandum is ordinarily a ministerial act & reading Section 174, Bengal Tenancy Act, as a whole we think that the Legislature was contemplating about some judicial act, and ordinarily & in the particular case now before us, the first judicial act is when the Court hears the appeal for admission under Order 41, Rule 11, Civil P. C. Rule 11 of Order 41 of the Code, it is urged, provides for the dismissal of the appeal under certain circumstances & there is no provision for admission of the appeal though in common parlance the order directing that the appeal would be heard is described as admission of the appeal. The steps for making the appeal ready for final h9aring can be & are taken only after such preliminary hearing & that is the stage when the appeal is admitted for hearing. As indicated already, there is a clear distinction between registering the appeal or admitting the memorandum on the one hand & the admission of the appeal on the other. The latter refers, in the case of a miscellaneous appeal before the Dist. J., to a hear rig under Order 41, Rule 11, Civil P. C. if the Court is not required at any earlier stage to pass any judicial order as when allowing an appeal to be filed beyond the period of limitation after exercising discretion under Section 5, Limitation Act.
14. We are of opinion that use of the word 'admitted' was intentional & the Legislature provided for the deposit of the money to be in time if it was so done before the appeal is admitted by a judicial act of the Court. When the Legislature have given, in the case of the decision of the trial Court, a definite limit as under Sub Section (8) of Section 174 (deposit being required before the order of setting aside the sale is made) or in the case of an appeal as under Sub Section (5) of Section 174 (the deposit to be made before the appeal is 'admitted),' the Court has not only the jurisdiction but is bound to receive the deposit if made before such respective due dates.
15. It is further to be noticed that the appeal in the present case was disposed of by the learned Dist. Judge without writing out a proper order. We have not been able to find out from the records as to on what material the Judge had based his observation that the application for time was a frivolous one. The learned Dist. J. did not apply his mind properly while dealing with this application. Viewed from this point also, the order complained of is not a proper order.
16. The Rule is accordingly made absolute & the order dismissing the appeal is set aside. It will, be competent for the judgment debtor to deposit the required amount before the appeal is set down for hearing under Order 41, Rule 11 (Civ. P. C.
17. In view of the facts of this case, each party will bear his own costs in this Court.