JUDGMENT 1. This appeal arises out of a suit for rent for the years 1341 to 1344 B. S. in which a claim for damages is also made. The tenure is a putni tenure which was created on the 9th March, 1886. The predecessors of Defendants Nos. 1 to 6 executed a putni kabuliyat in that year in favour of the predecessors-in-interest of the Plaintiffs. The predecessors of Defendants Nos. 7 to 10 were the dormant co-sharers of the predecessors of Defendants Nos. 1 to 6. The Defendants to the suit are as we have already stated, Defendants Nos. 1 to 10 whose predecessors may be taken to have executed the putni kabidiyat in favour of the Plaintiffs predecessors. By the putni kabuliyat a yearly rent of Rs. 3,862-11-1311/2 gds. payable in two equal bi-yearly installments was made payable. Over and above that, the putnidars had a liability for cess. There was, however, a barati arrangement in the kabuliyat by which the putnidars undertook to deposit on behalf of the zemindars the revenue and cesses payable to the Collector by the zemindars, their landlords, and to pay the balance as munafa to their landlords. That munafa comes up to Rs. 1,240-11-31/2 gds. per year. There being arrears of cess, the Collector of Khulna attached the estate under the provisions of sec. 99 of the Cess Act. The attachment was effected on the 9th October, 1935, and remained in force till the 29th January, 1938. The Collector realised by this attachment only a portion of the revenue and cesses due for the period 1341-1342. The Plaintiffs have not included in their claim that portion of the' revenue and cess which had been realised by the Collector after his attachment. The Plaintiffs paid the balance of the revenue and cess due to the Collector from their own pocket and thereby the estate was released from attachment in January, 1938. The Defendants Nos. 11 and 12 had taken mortgage of the said putni tenure from the Receiver who had been appointed over the estate of the Defendants Nos. 1 to 10. For an anterior period the Plaintiffs had obtained a decree for rent against Defendants Nos. 1 to 6, their recorded tenants. They put their decree into execution in 1937, the rent execution case being numbered 5 of that year. On the 23rd August, 1937, the Defendants Nos. 1 to 10. For an anterior period the Plaintiffs had obtained a decree for rent against Defendants Nos. 1 to 6, their recorded tenants. They put their decree into execution in 1937, the rent execution case being numbered 5 of that year. On the 23rd August, 1937, the Defendants Nos. 11 and 12 deposited the balance of the said decretal amount which came up to Rs. 5,186-2-3 pies. They are therefore, now in possession under the rights created in their favour by sec. 171 of the Bengal Tenancy Act and in that character they are in possession of the putni tenure since the 24th February, 1938, which corresponds to 12th Falgoon, 1344 B. S. Because of that fact they, the said Defendants Nos. 11 and 12, have been impleaded in this rent suit. The only Defendant who contested the suit was Defendant No. 11. The points urged by him in the lower Court were overruled by the learned Subordinate Judge and a decree was passed on contest against the Defendant No. 11 and ex parte against Defendants Nos. 1 to 10 and 12. It is against this decree that the Defendant No. 11 has preferred this appeal. Three points have been urged before us by his learned Advocate. First, that he and the Defendant No. 12 are not necessary parties and are not at all liable for the rent that has been claimed in the suit; secondly, that even if they were liable, the Appellant would only be liable for such rent that has fallen due since he and the Defendant No. 12 took possession of the putni under the provisions of sec. 171 of the Bengal Tenancy Act, that is to say, from 12th Falgoon, 1344 B. S. And thirdly, that no decree can be passed until an account is taken of what amount had been realised by the Collector from the tenants holding under the putni. We do not think there is any substance in the third point. For it has been found that the Collector had only realised by his attachment the revenue and cesses for a portion of the period in claim, that is for some years between 1341 and 1344. We do not think there is any substance in the third point. For it has been found that the Collector had only realised by his attachment the revenue and cesses for a portion of the period in claim, that is for some years between 1341 and 1344. Although the amount of revenue and cesses which the putnidars had undertaken to pay on behalf of the zemindars by reason of the barati arrangement in the putni kabuliyat is a part of the rent, the Plaintiffs did not claim that amount because it had already been realised by the Collector. On the facts found by the learned Subordinate Judge which have not been challenged before us by the learned Advocate for the Appellant, the third point does not arise. On the view that we have taken on the first point, it is unnecessary to consider the second point which has been urged before us. We, therefore, express no opinion on the point. 2. Regarding the first point, the position is this. By reason of the provisions of sec. 171 of the Bengal Tenancy Act, the Defendants Nos. 11 and 12 have become creditors of the putnidars for the amount of Rs. 5,186-2-3 pies which they deposited on behalf of the putnidars in Rent Execution Case No. 5 of 1937-and that amount carries interest at the rate of 12 per cent. per annum. That is sub-sec., cl. (a) of sec. 171 of the Bengal Tenancy Act. That clause also creates a mortgage on the putni tenure in their favour for the said sum of money and interest accruing due. Sub-sec. (1), cl. (6) of that section says that the mortgage created in their favour by sub-sec. L. R. 66 I. A. 60: s. c. 43 C. W. N. 281 (1938)., cl. (a) would have priority over every other charge on the putni tenure save and except a charge for arrears of rent. Cl. (c) entitled them to possession of the putni tenure. The position, therefore, of Defendants Nos. 11 and 12 is that they are mortgagees of the putni tenure entitled to retain possession as mortgagees of the putni tenure, an they are in possession of the mortgaged premises. But their mortgage is postponed to the first charge of the landlord for rent which has been created by sec. 65 of the Bengal Tenancy Act. 11 and 12 is that they are mortgagees of the putni tenure entitled to retain possession as mortgagees of the putni tenure, an they are in possession of the mortgaged premises. But their mortgage is postponed to the first charge of the landlord for rent which has been created by sec. 65 of the Bengal Tenancy Act. That being their position, we hold that the Defendants Nos. 11 and 12 in their character as second mortgagees are necessary parties to this suit. For unless they are made parties, their equity of redemption would not be cut off by the rent sale itself which might be held hereafter under Chapter XIV of the Bengal Tenancy Act but would have to be avoided by post sale proceedings by the purchaser. A further question may arise, if the whole of the decretal amount be not realised by the sale of the putni tenure. In that case it may be a question as to whether other properties of the judgment-debtors could be proceeded against for the balance that may be due. The tenure is a putni tenure and that question would depend upon whether sec. 168A of the Bengal Tenancy Act would be applicable. We are told that there has been a decision of a Division Bench of this Court on that point, but we have not seen that decision as it has not been reported yet. We, accordingly, do not express any opinion on this matter. But assuming that sec. 168A of the Bengal Tenancy Act is out of the way, the further question in such a contingency would arise as to whether the personal properties of Defendants Nos. 11 and 12 could be proceeded against. On the assumption that we have made, the position ought to be clarified. No doubt it has been held that a girbidar who has taken possession of a putni tenure under the provisions of sec. 13 of the Putni Regulations is liable for rent of the putni which he has taken possession of under that section to the superior landlord, viz., the zemindar. It is not necessary to consider those cases, because in the case before us no proceeding had been taken by the Plaintiffs under Regulation 8 of 1819. They have chosen to bring a suit for rent. We have to consider the position created by sec. 171 of the Bengal Tenancy Act. It is not necessary to consider those cases, because in the case before us no proceeding had been taken by the Plaintiffs under Regulation 8 of 1819. They have chosen to bring a suit for rent. We have to consider the position created by sec. 171 of the Bengal Tenancy Act. That section gives the person holding an interest in the tenure which would be affected by the advertised sale the rights of a mortgagee if he makes a deposit to avert the intended rent-sale. If he takes possession under the rights created under that section, the whole of the interest of the defaulting tenants is not transferred to him. These tenants still retain an interest. Under these circumstances the principles laid down in the case of Ram Kinkar Batterjee v. Satya Charan Srimani L. R. 66 I. A. 60: s. c. 43 C. W. N. 281 (1938). would apply. There would be no privity of estate between such depositor and the landlord. In this view of the matter, there would be no personal liability of Defendants Nos. 11 and 12 for the balance that may remain after the defaulting putni tenure is sold. As this position has not been clarified in the judgment under appeal, we do not make any order for costs in this appeal, although we are dismissing the appeal. The result is that this appeal is dismissed. Parties will bear their respective costs in this appeal.