JUDGMENT R.C. Mitter, J. - The Petitioners before me are some of the co-sharer landlords of an occupancy holding. The remaining landlords are Opposite Parties Nos. 3 to 13. One of their tenants who is Opposite Party No. 2 transferred his share in the holding to Opposite Party No. 1. On that the Petitioners applied on 12th June, 1934, for pre-emption under sec. 26F of the Bengal Tenancy Act and with their application they deposited in Court on that date, the price stated in the notice of transfer together with 10 per cent. compensation in accordance with the mandatory provisions of sec. 2GF (2). The purchaser who is Opposite Party No. 1, raised various objections to that application but those objections have not been considered on their merits, having regard to the unusual course which the case has taken in the lower Court. This application of the Petitioners for pre-emption was, however, dismissed for default on 8th December, 1934, and then the purchaser, Opposite Party got an opportunity of creating further trouble and complications and of that opportunity she fully availed herself, but the fraud has been ripped open in an order of the Court below to which I will presently refer; I am bound to grant the relief to the Petitioners whose application for pre-emption has met with an unnatural death. The position is this: As soon as the application for pre-emption was dismissed for default on 8th December, 1934, the Opposite Party No. 1 through her pleader, approached Opposite Parties Nos. 3 to 7 who had a money decree against the Petitioners. Of these Opposite Parties Nos. 5 and 6 are minors, and the other Opposite Parties Nos. 3, 4 and 7 are adults. They have not appeared in this Court, but the minor Opposite Parties Nos. 5 and 6 are represented by the Deputy Registrar, who has appeared through Mr. Chatterjee and they take shelter under the plea of minority and, inasmuch as none of the adult Opposite Parties amongst Opposite Parties Nos. 3 to 7 have appeared in this Court, I cannot take the effective steps which I had in-tended to take if any of them were present. But that does not prevent me from doing justice to the Petitioners to which they are clearly entitled. 3 to 7 have appeared in this Court, I cannot take the effective steps which I had in-tended to take if any of them were present. But that does not prevent me from doing justice to the Petitioners to which they are clearly entitled. As I have said that just on the dismissal for default of the application for pre-emption, the purchaser approached Opposite Parties Nos. 3 to 7 and told them to apply for execution of their decree against the Petitioners and to attach the monies deposited in Court under the provisions of sec. 26F (2), secretly. That advice was given by the Opposite Party No. 1 for her own interest; she or her advisors believing that if the money so deposited in Court be taken out, the application for pre-emption on restoration would be dismissed, as the money would not then be lying in Court. The Opposite Parties Nos. 1, 3 to 7 joined hands in the matter and surreptitiously, and by suppressing the processes on the judgment-debtors, the money was attached and taken away to the executing Court by Opposite Parties Nos. 3 to 7 and from there was withdrawn by Opposite Parties Nos. 3 to 7. The Petitioners, thereafter, applied on 23rd January, 1935 for restoration of their application for pre-emption which had been dismissed for default on 8th December, 1934. They satisfied the Court that there were good reasons for their non-appearance, and their application was ultimately restored on 4th May, 1935. As the money deposited had been withdrawn on 18th January, 1935 from Court, they made an application to the executing Court stating that Opposite Parties Nos. 1, 3 to 7 had colluded and had combined together, for the purpose of defeating his application for pre-emption, and suppressed the processes in execution and managed to withdraw the money deposited under sec. 26F (2) of the Bengal Tenancy Act. It would be profitable to notice here that the application for pre-emption was dismissed on 8th December, 1934 On 12th December, 1934, the application for execution was put in and on 18th January, 1935, the money was attached, transferred from one Court to another, and actually withdrawn by Opposite Parties Nos. 3 to 7. These things support the finding of fraud on the part of Opposite Parties Nos. 3 to 7. These things support the finding of fraud on the part of Opposite Parties Nos. 1, 3 to 7- -a finding which has been arrived at by the executing Court in its order dated 29th June, 1935. 2. The said Court, for the purpose of enabling relief to be given to the Petitioners, required the Opposite Parties Nos. 3 to 7 to deposit in Court the amount so withdrawn by them within 7 days from the date of that order, in order to enable the Court, after receiving the said money, to transmit the same to the Court in which the application for pre-emption was pending. This order was not complied with. and I am told has not been complied with up till now, and it is my direction that the executing Court should take every step for the purpose of compelling the Opposite Parties Nos. 3 to 7 to carry out that order, as quickly as possible. The finding of the executing Court is that the money was withdrawn by Opposite Parties Nos. 3 to 7 in furtherance of a conspiracy between them and Opposite Party No. 1, and they must be compelled to put in that money into Court, as quickly as possible. 3. After this order of 29th June, 1935, was passed and the money not being put in by Opposite Parties Nos. 3 to 7, the same Judge who was presiding over the executing Court passed an order in the pre-emption case, because that case was also before him, on 20th July, 1935, requiring the Petitioners for pre-emption to make a further deposit. This order was made by that Court only after the period of 7 days, mentioned in the order of the 29th June, 1935. Time was given to the said Petitioners to put in the money but ultimately on 24th July, 1935, the Court passed the following order:-- Parties file hajira. No deposit made as ordered above, so the application cannot be heard on the face of the formal defect. Ordered that the case be dismissed and the opposite party will get full costs from the applicants. 4. The Opposite Party here obviously means the purchaser. I cannot understand why the same Judge who found the Opposite Parties Nos. 3 to 7 and the purchaser guilty of fraud and collusion made that order for costs. Ordered that the case be dismissed and the opposite party will get full costs from the applicants. 4. The Opposite Party here obviously means the purchaser. I cannot understand why the same Judge who found the Opposite Parties Nos. 3 to 7 and the purchaser guilty of fraud and collusion made that order for costs. However, I consider this order of dismissal to be a wrong order. The statute requires that with the application for pre-emption the price, as stated in the transfer notice together with 10 per cent. compensation money, has to be deposited. If that is not done the application is a bad one and should be thrown out But in these circumstances the provisions of sec. 26F (2) has been technically complied with, because with the application for pre-emption which was filed on 12th June, 1934, the said money was deposited. The application is therefore not hit by that sub-section. By reason of the fraud of the purchaser, the money disappeared from Court at a subsequent stage and has not been brought back in Court as yet, inspite of the Court's order. The question is whether under these circumstances the application for pre-emption can be dismissed. 5. An examination of the relevant provisions of the statute on the subject, namely, sec. 26F, cls. (2), (3) and (5) makes the position clear that certain monies mentioned under sub-sec. (2) must be deposited in Court along with the application for pre-emption, or to be more accurate, if it is not put in with the application for pre-emption the money must be put in within the period of limitation for such an application. The application has to be registered if it is prima facie a good application. Then at the time of the trial, at a late stage of the proceeding, the Court is required to make enquiries under sub-sec. (3), if so required by the purchaser, and to find out if any additional sums of money have to be deposited by the applicants for pre-emption. Sub-sec (4) need not be considered in this case because it deals with the right of co-sharer landlords originally made Opposite Parties, to become co-applicants, and the proceeding to be followed in such a case. Sub-sec. (5) details what has to be done by the Court at the final stage. Sub-sec (4) need not be considered in this case because it deals with the right of co-sharer landlords originally made Opposite Parties, to become co-applicants, and the proceeding to be followed in such a case. Sub-sec. (5) details what has to be done by the Court at the final stage. It contemplates two orders--an order for pre-emption in favour of the applicants if he is entitled to such an order, and in that contingency a further but really a distinct order in favour of the purchaser. The order which is to be made in favour of the purchaser is a separate order but is no doubt dependent on an order for pre-emption in favour of the applicant for pre-emption. They are distinct orders, however, and the order for pre-emption has to be made if the Court finds the merits in favour of the applicant and if the deposite required under sub-secs. (2) and (3) have been made. 6. In this case, the deposit under sub-sec. (2) had been made and there was no bar to the Court making an order f or pre-emption even without the money being in Court at the date of the order in the special circumstances of this case which I have detailed above. There was no bar to the Court going on with the application for pre-emption, and considering the objections of the purchaser on the merits, and if those objections were untenable, there was no bar in making an order for pre-emption in favour of the applicants. It could not make the second order contemplated under sub-sec. (5) till the money was brought into Court again by the Opposite Party Nos. 3 to 7, in pursuance of the order passed on them already by the same Judge but sitting as an executing Court, with the intention that if the money had been brought in it would be sent for depositing in the miscellaneous case, namely, the case for pre-emption. 7. The order,, therefore, that I propose to make is this: I vacate the order passed by the lower Court requiring a further deposit and dismissing the application for pre-emption and direct that the Court is to proceed on to decide the question as to whether the Petitioners, before me, are entitled to pre-emption by considering the merits of the objections raised by the purchaser. If it comes to the conclusion that they are entitled to an order for pre-emption it would make an order for pre-emption in their favour, and would only postpone the passing of the order in that case. for the payment of the price and 10 per cent., being the compensation money, together with such monies as may be found due under sub-sec. (8) to the purchaser till the money is brought in Court by Opposite Parties Nos. 3 to 7--the money which they have withdrawn fraudulently and in collusion with the purchaser in the circumstances narrated above from the Court on 18th January 1935. 8. For the purpose of compelling the said Opposite Parties Nos. 3 to 7 to put in the said money in the executing Court, as already directed, the Court should take all legal steps as quickly as possible, and, as soon as the executing Court receives the money or realizes the money from the Opposite Parties Nos. 3 to 7, it would transfer the money to the Court in which the application for pre-emption has been filed, so that the latter Court may make the necessary payment order to the purchaser. I make the Rule absolute, but the order for costs would be that Dr. Pal's client would get the costs of this Rule from Opposite Parties Nos. 1, 3, 4 and 7. I assess the hearing-fee at three gold mohurs.