JUDGMENT Costello, A. C. J. 1. The present Appellant is a lady named Sm. Bidhubala Dasi who is said to be the heiress of a certain judgment-debtor and as such she on the 24th June, 1936, filed a petition under sec. 174, sub-sec. (3) of the Bengal Tenancy Act for setting aside a 6ale which had taken place some six months before, viz., on the 20th December, 1935, when the judgment-debtor's property, Lot No. 1, was sold to the decree-holder for the sum of Rs. 50,000. The sale had taken place after an application made on the same day by the judgment-debtors for an adjournment of the sale had been rejected as frivolous. That was the last of a series of applications for adjournment. The sale, as I have stated, took place on the 20th December, 1935 and on the 20th January, 1936, thirty days having elapsed and no objection having been raised, the sale was confirmed and an order was recorded by the Subordinate Judge to the effect that the case was dismissed on full satisfaction. Then six months later, Bidhubala came forward with an allegation that the sale proclamations were fraudulently suppressed and consequently the property which was worth not less than a lac of rupees was sold and auction-purchased by the Decree-holders themselves at a very inadequate price, viz., Rs. 50,000, causing substantial loss to the Petitioner. She also alleged that the description of the property in the sale proclamation was defective, untrue and misleading. 2. The matter eventually came before the learned Subordinate Judge on the 21st January, 1937, when he said: The only point for decision in this case is-was there any material irregularity or fraud in publishing and conducting the sale? If so, has the Petitioner sustained substantial loss thereby? 3. The property in question was a darpatni comprising several mouzas in the Districts of Dinajpur, Rungpur and Bogra. After considering the matter very carefully and all the evidence given before him, the learned Subordinate Judge came to the conclusion that there was no material irregularity in publishing and conducting the sale. Then he said: Even if it be held that there was any material irregularity or fraud, then also the Petitioner cannot succeed, for she has failed to show that she has sustained substantial loss by reason of the same. Then he said: Even if it be held that there was any material irregularity or fraud, then also the Petitioner cannot succeed, for she has failed to show that she has sustained substantial loss by reason of the same. There is no documentary evidence to show the market value of such property at the time of the Bale in question. 4. Towards the end of his judgment he said: All things considered. I find that the Petitioner has failed to show that the property is really worth more than Rs. 50,000 (the price fetched at the sale) or that she has suffered any substantial loss by reason of any irregularity or fraud in publishing and conducting the sale." "The application is hence rejected and the Miscellaneous case dismissed with costs to the Decree-holders opposite party. 5. It is against that order the Petitioner Bidhubala seeks to appeal. 6. The memorandum of appeal was presented to this Court on the 22nd April, 1937. The Stamp Reporter made a report dated the 23rd April, 1937. On the 27th April, 1937, it is recorded in the Order Book- Appeal now in form, Register and post for hearing under Or. XLI, r. 11, C. P. C. 7. Then under date 1st May, 1937, we find the entry "appeal registered." On the 3rd May, 1937, the filing intimation was issued. So that by that date the appeal purported to have been admitted. It came before this Court under the provisions of Or. 41, r. 11 on the 28th May, 1937, when an order was made that the appeal would be heard and that the preparation of the paper-book should be expedited and the appeal set down for hearing on the 28th of July which is to-day. 8. Now, a preliminary objection has been taken on behalf of the Respondents to the effect that the appeal is incompetent by reason of the provisions of the terms of the proviso to sub-sec. (5) of sec. 174 of the Bengal Tenancy Act. 8. Now, a preliminary objection has been taken on behalf of the Respondents to the effect that the appeal is incompetent by reason of the provisions of the terms of the proviso to sub-sec. (5) of sec. 174 of the Bengal Tenancy Act. That sub-section is in these words: An appeal shall lie against an order setting aside or refusing to set aside a sale: Provided that where the Court has refused to set aside the sale on the application of the judgment-debtor or any person whose interests are affected by the sale and the amount recoverable in execution of the decree is not in deposit, no such appeal shall be admitted unless the Appellant deposits such amount in Court. 9. This clearly was a case falling within the purview of that proviso, that is to say, the Subordinate Judge had by his order dated the 22nd January, 1937, refused to set aside the sale which had been held on the 20th December, 1935, on the application not of the judgment-debtor herself but of a person whose interests were affected by the sale, namely, the lady, the heiress of the judgment-debtor. In such circumstances, it is clear beyond all question that no appeal against the order of the learned Subordinate Judge ought to have been admitted, unless the Appellant deposited "the amount recoverable in execution" in Court. That admittedly was not done. Had our attention been called to this point when the matter was before us on the 28th of May last, the would-be Appellant would have been saved a good deal of trouble and a great deal of expense, for we should then undoubtedly have held that the appeal was not in order. As it is, our attention having been called to the provisions of sec. 174, sub-sec. (5), we are bound to hold that the deposit of the amount recoverable in execution of the decree is a condition precedent to or, at any rate, a contemporaneous act in connection with-the "admission of the appeal." Admission has nothing to do with the stage when the matter comes before the Court. That is made quite clear by putting in juxtaposition the proviso to sub-sec. (8) of sec. 174 and the provisions of sub-sec. (5) of that section. That is made quite clear by putting in juxtaposition the proviso to sub-sec. (8) of sec. 174 and the provisions of sub-sec. (5) of that section. In the former case, the expression is No application by a judgment-debtor or any person whose interests are affected by the sale shall be allowed unless the applicant either deposits the amount recoverable from him in execution of the decree or satisfies the Court, for reasons to be recorded by it in writing, that no such deposit is necessary. 10. In the latter case, the expression is No such appeal shall be admitted, unless the Appellant deposits such sum in Court. 11. 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 an application to set aside a sale, the deposit must be made as required by sub-sec. (5) before the appeal can be entertained at all. Mr. Sen appearing on behalf of the Appellant has frankly conceded that he is in a difficulty and being in that difficulty, he wanted us to do something which is not contemplated and, indeed, not authorised by the statute, namely, to give him now an opportunity of making the required deposit. That we have no power to do: nor, indeed, if we had. should we in the circumstances of the case be disposed to do it. The appeal must, accordingly, be dismissed with costs. Edgley, J. I agree.