JUDGMENT 1. This rule raises an important question on the construction of sec. 171 of the Bengal Tenancy Act. The circumstances leading up to the application to this Court are not in controversy. The Petitioners alleges that one Babu Raj Narain brought a suit for rent against some of the opposite party in respect of a holding over a portion of which the Petitioners held a surpethgi lease under a deed executed on the 21st July 1900. The landlord obtained a decree, and took out execution and the holding was advertised for Bale. The Petitioners with a view to protect their interest, which would be voidable upon sale, deposited the decretal amount, on the 20th June 1906, in accordance with the provisions of sec. 171 of the Bengal Tenancy Act. They then made an application to the execution Court on the 10th May 1907 and prayed that they might be placed in possession of such portion of the holding as was not covered by their zurpeshgi. On the 20th May 1907, the Munsif held that the applicants could not obtain a summary order for possession and that their remedy was by a regular suit for recovery of possession. It is this order which we are invited to revise on the ground that the Petitioners were entitled to be placed in possession of the holding under cl. (c) of sec. 171 of the Bengal Tenancy Act and that the Court below has refused to exercise a jurisdiction vested in lb by law. The question, therefore, which calls for decision is whether, when a deposit is made under sec 171 of the Bengal Tenancy Act, the depositor is entitled upon application to the execution Court, to be placed in possession of the holding advertised for sale. Sec. 171 provides that when a tenure or holding has been advertised for sale under Chap. XIV of the Bengal Tenancy Act in execution of a decree for arrears of rent, any person who has in the tenure or holding an interest which would be voidable upon the sale, may pay into Court the amount requisite to prevent the sale; the amount so paid is to be deemed a debt which carries interest and is secured by a mortgage of the tenure or holding; and such mortgage takes priority of every other charge on the tenure or holding other than a charge for arrears of rent. The section then lays down that the person who has made the deposit "shall be entitled to possession of the tenure or holding as mortgagee of the tenant, and to retain possession of it as such until the debt, with the interest due thereon, has been discharged." The provisions of the section, however, do not affect any other remedy to which the depositor may be entitled; in other words, the remedy is in addition to and not in substitution for any other remedy open to the depositor. 2. It is argued by the learned vakil for the Petitioners that the applicants are entitled to an order for delivery of possession of the tenure advertised for sale merely upon an application to the execution Court. It must be observed, however, that the section does not expressly provide that the depositor is so entitled to be placed in possession upon application to the execution Court, To determine whether the interpretation sought to be put upon the section on behalf of the Petitioners is well-founded, it is necessary to refer for a moment to the history of the legislation on the subject. Sec. 171 of Bengal Tenancy Act replaces sec 62 of Act VIII (B. C.) of 1869 which In its turn, took the place of sec. 6 of Act VIII (B. C.) of 1865. The provisions in the Acts of 1865 and 1869 were practically identical and were to the following effect: "if the sum due under the decree together with interest up to the date of payment and all coats be paid Into Court at any time before the sale commences whether by the defaulting holder of the under-tenure or any due on his behalf or any one Interested in the prosecution of the under-tenure, such sale shall not take place; and the provisions of sec. 13 of Regulation VIII of 1819 for the recovery of the sums paid by a person other than the defaulting holder of the under-tenure to stay the sale of the under-tenure, shall be applicable to all similar payments made under this section." Under this section (sec. 13 of Regulation VIII of 1819 for the recovery of the sums paid by a person other than the defaulting holder of the under-tenure to stay the sale of the under-tenure, shall be applicable to all similar payments made under this section." Under this section (sec. 62 of Bengal Act VIII of 1869) It was held by a Full Bench of this Court in Umbika Debia v. Pranhure Doss 4 B. L. R. 77 (F. B.) : 13 W. R. 1 (F. B.) (1869), that an under-tenant who has saved his superior tenure from sale by depositing the amount of rent due, not only has the security of the tenure which he preserves and of which he can obtain possession on application to the Collector, but he has also a right to recover, by an ordinary suit the amount deposited by him as a loan. 3. Statutory effect is now given to this view by sub-sec. 2 of sec 171 of the Bengal Tenancy Act. It must be observed, however, that sub sec. 1 of sec. 171 introduces important variations into the provisions of sec. 62 of Bengal Act VIII of 1869 which made the provisions of sec. 13 of the Putni Regulation applicable. Cl. 4 of sec. 13 of the Putni Regulation, to which reference is made, provided that if an under-tenant of the second-decree makes a deposit in order to stay the sale of the superior tenure and if he is not himself In arrears, the deposit shall be considered as a loan to the proprietor of the tenure preserved from sale and the tenure so preserved shall be security for the advance and the depositor shall be entitled, on applying for the same, to obtain immediate possession of the tenure of the defaulter, in order to recover the amount so advanced, from any profits belonging thereto. Apart from the fundamental distinction that, under sec. 13 of the Putni Regulation a deposit can be made only by an under-tenant, whereas under the Acts of 1865, 1869 and 1885 a deposit can be made by any person interested in the tenure or holding, it is worthy of notice that cl. 4 of sec 13 of Regulation VIII of 1819 expressly provides that the depositor shall be entitled upon application to obtain immediate possession of the tenure of the defaulter. 4 of sec 13 of Regulation VIII of 1819 expressly provides that the depositor shall be entitled upon application to obtain immediate possession of the tenure of the defaulter. In Act VIII of 1885, however, where the language was recast, the provision is that the depositor shall be entitled to possession of the tenure or holding as a mortgagee of the tenant. It is impossible to say that this alteration in language was not intentional. In our opinion, the effect of this change is to make it no longer obligatory upon the execution Court to place the depositor in possession of the tenure or holding saved from sale, and it appears to us that there is an intelligible reason for this variation. 4. Under sec. 171 of the Bengal Tenancy Act, the deposit may be made by any person who has an interest which would be voidable on the sale. It is not inconceivable that a question may arise as to whether the depositor really has an interest in the tenure or holding, and if so whether the interest is of a description which would be voidable upon the sale. Such question may be raised by a person other than the decree-holder or the defaulter judgment-debtor. For instance, the tenant against whom the decree for rent has been obtained, may have previously placed somebody else in possession of the holding under a lawful agreement, as for instance, under a lease or a usufructuary mortgage so that when a deposit is made under sec. 171 by some other person who claims an interest in the tenure, the person who has derived his title from the defaulter may question the right of the depositor. If he does so, a dispute might arise as between two persons neither of whom is a party to the execution proceedings. It is hardly conceivable that a question of this character could be investigated by the execution Court and a summary order made for delivery of possession as against a person who is not a party to the rent decree, who claims to hold possession of the property under a prim good title from the tenant and who denies the existence or validity of the interest claimed by the depositor. In such circumstances, the execution Court could not very well place the depositor in possession with the result that the other claimant is ousted from occupation. 5. In such circumstances, the execution Court could not very well place the depositor in possession with the result that the other claimant is ousted from occupation. 5. Our attention was however invited to the decision of this Court in the case of Umatul Fatimah v. Nemed Chandra Banerjee Civil Rule No. 3124 of 1903 decided by Harington and Brett, JJ., on the 15th June 1904, where a Division Bench appears to have held that there is nothing In sec. 171, sub-sec (1), cl. (c) to indicate that it is necessary that a person who has paid money under this section, should bring a separate regular suit to obtain possession. The learned Judges assumed the intention of the Legislature to have been that on payment of the sum, the depositor should make an application to the Court to be placed In possession of the tenure, and observed that 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. No reasons are assigned in support of this view and the attention of the learned Judges does not appear to have been drawn to the material difference In language between the provisions of sec. 171 and of sec 62 of Act VIII (B. C.) of 1869, by which cl. 4 of sec 13 of the Putni Regulation was made applicable. In our opinion, the view indicated in the case cited, is expressed too broadly. We are prepared to hold that as against the judgment-debtor, the depositor can obtain delivery of possession by application to the execution Court: but that by such application the depositor is not entitled to invite the execution Court to oust a stranger to the proceeding. If he is met by such a stranger, his remedy is by a regular suit for recovery of possession, and in such a suit the person in possession who is sought to be ousted may take any appropriate defence and may put the depositor to the proof of his alleged title. In other words, as soon as a person has made a deposit under sec 171 of the Bengal Tenancy Act, if he makes an application to the execution Court, he is entitled to delivery of possession at against the judgment-debtor who is a party to the proceeding. In other words, as soon as a person has made a deposit under sec 171 of the Bengal Tenancy Act, if he makes an application to the execution Court, he is entitled to delivery of possession at against the judgment-debtor who is a party to the proceeding. But If, when the writ for delivery is attempted to be executed, the depositor is met by some other person who is in possession, such third party cannot be summarily ousted. The judgment-debtor is a party to the proceedings; he has admittedly made default and by reason of his failure to satisfy the decree obtained against him, the holding is advertised for sale. When the deposit is made by a person who claims an interest in the tenancy voidable upon the Bale, It is open to the judgment-debtor to challenge his title, if he 30 chooses. But if he does not take any objection and allows the deposit to be made, with the result that the tenure or holding is saved from sale, he cannot subsequently resist an application for delivery of possession. It would be meaningless to drive the depositor in such a case to a regular suit for recovery of possession. This course would not only entail unnecessary delay which is likely to defeat the statutory object of this provision of the law; it would also foster an unreasonable multiplicity of suits. When, however, the depositor is met by a third person who is not a party to the proceeding, other considerations arise. The Legislature could not have contemplated, as is plainly indicated by the alteration in the language to which we have already adverted, that a stranger should be summarily evicted at the instance of a person who has made the deposit and whose title he had no opportunity to challenge by an appropriate proceeding. 6. On the whole, therefore, the conclusion seems to us to be reasonable that although the depositor under sec. 171 is entitled upon application to the execution Court to obtain delivery of possession as against the judgment debtor who party to the proceedings, he is not entitled to an order for delivery as against a person who is a stranger to the proceeding; against such a person his remedy is by a regular suit. 7. 171 is entitled upon application to the execution Court to obtain delivery of possession as against the judgment debtor who party to the proceedings, he is not entitled to an order for delivery as against a person who is a stranger to the proceeding; against such a person his remedy is by a regular suit. 7. In the case before us, it is admitted in the petition on which the rule was issued, that a portion of the holding is In the possession of the judgment-debtors (opposite party 1 to 3) and that other portions are in the possession of opposite parties 4 and 5, who are no parties to the decree or to the execution proceedings. The Court below, however, has not made any distinction between the different sets of opposite parties and has declined to entertain the application for delivery of possession on the broad ground that under sec 171 the depositor is not entitled to possession upon application to the execution Court. As we have already explained, this view cannot be entirely supported. The result, therefore, is that the rule is made absolute and the order of the Court below is discharged in part. As against the judgment-debtors, opposite parties who were parties to the decree for rent and to the execution proceedings, the rule is made absolute and possession will be delivered to the Petitioners as against them. As against opposite parties 4 and 5 who were not parties to the decree for rent or to the execution proceedings the rule is discharged. As no appearance has been entered on behalf of any of the opposite parties we make no order for costs.