JUDGMENT Chakravarti, J. - This Rule is directed against an order, dated 20th May 1948, passed by the learned third Munsif at Alipore on an application made by the petitioner under S. 17, Calcutta Rent Ordinance. By the said order the petitioner's application was rejected. 2. Briefly stated, the facts are the following: Opposite Parties 1 to 3 brought a suit against the petitioner for his ejectment from premises No. 19/7 Iswar Ganguly Lane, Alipore, on the allegation that the tenancy had been terminated by notice to quit and that the petitioner had failed to perform the conditions of the tenancy with respect to payment of rent. The defence to that suit was a rather unusual one. The petitioner set up title in himself. His case was that he was the full owner of the premises in question and had approached Opposite Parties 1 to 3 for a loan on a mortgage. But in order to avoid the provisions of the Bengal Money-lenders Act it was agreed between the parties that there would be a fictitious sale deed and a lease back from the ostensible purchaser to the ostensible vendor, whereas in fact the transaction would be one of mortgage. His further case was that the deed of lease executed under the above arrangement contained a specific provision to the effect that if at any time within 1st September 1942, the petitioner, by separate notice to each one of the Opposite Parties 1 to 3, informed them that he intended to purchase the premises at a price of Rs. 9000 the said opposite parties would be bound to reconvey the premises to him. Such notices it was alleged, had been given but the Opposite Parties 1 to 3 had failed and neglected to execute a conveyance in his favour. 3. The suit, however, was decreed ex parte. I am informed that an application for setting aside the ex parte decree was rejected and further proceedings against that rejection were all unsuccessful. 4. The petitioner then brought a suit for redemption and in the alternative for specific performance which is Suit No. 38 of 1945 and is still pending. In that suit he asked for an injunction against Opposite Parties 1 to 3, restraining them from executing the decree and a temporary injunction was granted. 4. The petitioner then brought a suit for redemption and in the alternative for specific performance which is Suit No. 38 of 1945 and is still pending. In that suit he asked for an injunction against Opposite Parties 1 to 3, restraining them from executing the decree and a temporary injunction was granted. I must state at this stage that the decree for ejectment was passed on 9th June 1944. Within a week thereof, on 14th June following, the Opposite Parties 1 to 3 conveyed all the right, title and interest in the premises in question together with the rights under the decree to Opposite Party 4. 5. To return to the Title suit, it was dismissed for default. On an appeal to this Court it was restored on condition of payment of certain coats but the injunction was not revived. I am informed that 21st July next has been fixed for the hearing of that suit. 6. To return now to the application under S. 17, Calcutta Rent Ordinance, the application was made on the ground that Opposite Parties 1 to 3 had not obtained the permission of the Rent Controller before instituting the ejectment suit and consequently if the Ordinance had been in force, on the date on which the suit was brought, it would not be maintainable. The learned Munsif has rejected that application on the ground that the petitioner could not approbate and reprobate. The learned Munsif thought that since in the ejectment suit as well as in the Title suit subsequently instituted, the petitioner had repudiated status of a tenant and set up full title in himself he was precluded from claiming any advantage on the basis of being a tenant. On that short ground the learned Munsif dismissed the application. Against that order the present Rule was obtained. 7. Mr. Ghose who appears for opposite party 4, took a preliminary objection that no relief against his client could be given under S. 17, Calcutta Rent Ordinance, inasmuch as he was not a party to the suit. That objection to my mind is clearly not sustainable. In the first place S. 17 says nothing about parties; in the second place it appears from a reference to the records that opposite party 4, himself applied for substitution on 15th August 1944, and his application was granted on 9th September. That objection to my mind is clearly not sustainable. In the first place S. 17 says nothing about parties; in the second place it appears from a reference to the records that opposite party 4, himself applied for substitution on 15th August 1944, and his application was granted on 9th September. There is therefore no force in the preliminary objection. 8. Proceeding now to the merits the view taken by the learned Munsif is, in my opinion, clearly wrong. It matters nothing that the petitioner had set up title in himself both in the ejectment suit and in the title suit. He may have taken a thousand defences but so far as the present suit is concerned his defence was overruled and a decree was made against him on the basis that he was a tenant. There is no reason at all why he should not be allowed to submit to that decree so far as this suit is concerned and contend that assuming that he is a tenant, as the Court has held, his further rights should be worked out in accordance with law. It is equally immaterial that be has brought a title suit. There is nothing to prevent him from trying to establish his higher title and from saying at the same time that in any event he is entitled to the advantages attaching to the lower status which the Court has found in the ejectment suit. I am of opinion that the ground urged before me and given by the learned Munsif in support of his order is utterly untenable. 9. On the facts there can be no doubt that the decree for ejectment could not have been made if the Calcutta Rent Ordinance was in force at its date. I have referred to the plaint and I find that there is a clear allegation there that the defendant had forfeited his rights under the lease by non-compliance with and failure to perform the terms and covenants relating to payment of rent and Municipal taxes. Clearly, the plaintiffs in the ejectment suit were putting that ground forward as a ''ground of eviction" and that being so, if the suit had been brought after the Calcutta Rent Ordinance had come into force, it could not have been entertained by reason of the provisions of S. 14 of the Ordinance. Clearly, the plaintiffs in the ejectment suit were putting that ground forward as a ''ground of eviction" and that being so, if the suit had been brought after the Calcutta Rent Ordinance had come into force, it could not have been entertained by reason of the provisions of S. 14 of the Ordinance. It follows that the decree could cot have been made. 10. Mr. Ghose who appears for the opposite party No. 4 concedes that position but contends that in any event the powers conferred on the Court by S. 17 are discretionary and consequently before an order is made in the petitioner's favour under that section, he should be put on terms as to the payment of arrears of rent. The justice of this contention must be admitted. The petitioner was inducted on 27th November 1940. It was admitted before me that the petitioner had not paid any rent since the date of the lease. It is true that his case is that both the lease and the sale were merely make-believe transactions but in the present suit I must make an order on the basis that he is a tenant, as found by the Court below. The deed of lease itself shows that the petitioner was to notify his intention to purchase the premises within 1st September 1942 and the reconveyance was to be made within three months from that date. Prima facie, therefore, on the terms of the lease, the petitioner would be a tenant for the period of two years and one month and for that period he would be liable to pay rent. I am making this observation merely from a reading of the lease and I am not in any way deciding the contention of the petitioner that the lease was not a real lease at all. All that I am saying is that on the basis that the petitioner is a tenant he would be bound to pay rent in any event for two years and one month which amounts to Rs. 625 calculated at the rate of Rs. 25 per month. The arrears of rent up to June 1948 work up to Rs. 2275. Mr. Ghose says that to this amount the arrears of Municipal taxes should be added. He also prays for the costs awarded. 625 calculated at the rate of Rs. 25 per month. The arrears of rent up to June 1948 work up to Rs. 2275. Mr. Ghose says that to this amount the arrears of Municipal taxes should be added. He also prays for the costs awarded. I do not think I am called upon to take an account between the parties in the present matter. All that I am concerned with is that I should determine a figure in order to direct the petitioner to pay a reasonable sum to opposite party No. 4 if he wishes the decree to be set aside. 11. I have considered whether I should not send the case back in order that the learned Munsif may himself decide whether relief under S. 17 should or should not be given on the merits but I consider that no useful purpose would be served by making an order of remand, because it is patent on the face of the record that the decree is liable to be rescinded. The better course, in my opinion, would be to close the matter here and to make a final order. 12. I accordingly direct that execution of the decree will remain stayed for three weeks from to day in the first instance and within that period the petitioner must deposit in the executing Court a sum of Rs. 625. If the said amount be paid within the time above mentioned the execution case will remain further stayed till 31st August 1948 within which time the petitioner must pay a further sum of Rs. 1000. If that sum be paid within the time above mentioned, the decree for ejectment will be set aside and the plaintiff's suit will stand dismissed. If the sum of Rs. 625 be not paid within three weeks execution of the decree will proceed. If the Title Suit is decided before 31st August and results in the petitioner's favour, he will not be required to make the further deposit of Rs. 1000 as directed above and the ejectment decree will be set aside and the plaintiff's suit shall stand dismissed. If, on the other hand, the suit is decided against the petitioner within 31st August next, or not decided at all, and the petitioner does not put in the sum of Rs. 1000 as directed above the Rule will stand discharged and execution will proceed. 13. If, on the other hand, the suit is decided against the petitioner within 31st August next, or not decided at all, and the petitioner does not put in the sum of Rs. 1000 as directed above the Rule will stand discharged and execution will proceed. 13. If the amounts mentioned above are put in Court as directed, opposite party No. 4 will be entitled to withdraw the same on furnishing security to the satisfaction of the executing Court. 14. The Rule is disposed of in the above manner. I make no order as to costs.