JUDGMENT Banerjee, J. - Two questions have been raised in this application, either of which decided against the Petitioner, who is the Defendant in this suit, is fatal to this application. They are (1) whether the Petitioner is a thika tenant within the meaning of the Ordinance (II of 1948), and (2) whether the Petitioner is within time to make the deposit contemplated in the proviso of cl. (3) of the said Ordinance. 2. In the Ordinance, unless there is any thing repugnant in the subject or context-- Thika tenant" means any person who under the system commonly known as "thika," "thika masik utbandi," "thika masik,"....."thika bastu" or under any other like system, holds land under another person whether under a written lease or otherwise and is, or but for a special contract would be liable to pay rent at a monthly or any other periodical rate, for that land to such other person and has erected any structure on such land and is entitled to use it for residential purposes or for manufacturing or business purposes and includes the successors-in-interest of such person. 3. If the structure on the land has not been erected by the tenant, then even though the other conditions mentioned in the definition are fulfilled, the tenant is not a thika tenant. 4. The question is whether the Petitioner erected the structures on the land. 5. The Plaintiff decree-holder who is the landlord, denies that the structures were erected by the Petitioner. 6. In the written statement filed by the Defendant in this suit she stated:-- By an Indenture dated February 11, 1941, executed by the plaintiff for valuable consideration, the plaintiff absolutely transferred his right, title and interest in the structures standing on the said land and conferred on the defendant a permanent right to the said land The defendant states that by the Indenture dated 11th February, 1941 the plaintiff, surer alia, represented to the defendant that she would enjoy the said structures standing on the said land from generation to generation. Pursuant to the said representation, the defendant purchased the said structures at Rs. 500/-from the plaintiff and also spent from time to time a sum of over Rs. 700/- for addition to and alterations in the said structures, to the full knowledge of the plaintiff and without any objection from him. 7. Pursuant to the said representation, the defendant purchased the said structures at Rs. 500/-from the plaintiff and also spent from time to time a sum of over Rs. 700/- for addition to and alterations in the said structures, to the full knowledge of the plaintiff and without any objection from him. 7. That was the Defendant's case in the written statement with regard to the structures on the land. 8. In the petition, however, of this application, she states that she is a thika tenant paying monthly rent of Rs. 21 and erected structures on such land which are still standing thereon and is entitled to use it for residential purposes and also for business purposes. 9. In the affidavit in opposition filed on behalf of the Plaintiff landlord, it is stated I emphatically deny that the Defendant was my thika tenant within the meaning of the Ordinance or that she erected the structures on the laud which are still standing thereon. 10. In the said affidavit in opposition the Plaintiff continues: "that the structures standing on the land were sold by me to the Defendant under a Bengali Bill of sale hearing date February 11, 1941. and were not erected by her. 11. In the affidavit in reply the Petitioner states as follows:-- I admit the purchase of huts and structures but I say that after purchase I spent more than Rs 1500/- in repairing and In building some of the huts and I constructed a new hut and one pucca privy after purchase. 12. The Petitioner does not adduce any evidence in support of her allegation that she erected' the structures. She does not give in her petition or in the affidavit in reply any particulars of the tenancy or of any system, which would even prima facie establish that the Petitioner is a thika tenant. 13. Having regard to the bill of sale dated February 11, 1941, and to the Petitioner's own statements in the written statement, I am unable to hold that the structures or any of them was erected by her. 14. Therefore, the first question must be decided against the Petitioner. 15. 13. Having regard to the bill of sale dated February 11, 1941, and to the Petitioner's own statements in the written statement, I am unable to hold that the structures or any of them was erected by her. 14. Therefore, the first question must be decided against the Petitioner. 15. As to the second question, the decree for ejectment was made on September 28, 1948, and is in these terms: It is ordered and decreed that the Defendant do deliver up to the Plaintiff quiet, vacant and peaceful possession of a portion of the plot of land, No. 10, Dinabandhu Lane (the premises in suit),.... And it is further ordered and decreed that the Defendant do pay to the Plaintiff the sum of Rs. 189 for arrears of rent in respect of the said plot of land and mesne profits thereof at the rate of Rs. 21 per month commencing from the 1st January, 1946, until delivery of possession to the Plaintiff as aforesaid and the cost of this suit to be taxed by the Taxing Officer of this Court..... 16. On October 25, 1948, the said Ordinance came into force. The Court opened after the long vacation on November 15, 1948. The notice of motion for this application was taken out on November 25, 1948. Therefore, 30 days from the date of the decree have expired. 17. Clause (3) of the Ordinance is as follows:-- Notwithstanding any thing contained in any other law for the time being in force, no decree or order for the ejectment of a thika tenant shall be executed during the continuance in operation of this ordinance. Provided that the provisions of this section shall not apply to any decree or order for ejectment of a thika tenant made on the ground of non-payment of rent by such tenant unless such tenant deposits into court the amount of the decree or order together with such costs, If any, as the Court may direct, within thirty days from the date of the decree or order 18. It thus appears from the proviso that the deposit is to be made within 30 days from the date of the decree. The 30 days have already expired and no deposit can he made. 19. It thus appears from the proviso that the deposit is to be made within 30 days from the date of the decree. The 30 days have already expired and no deposit can he made. 19. But on behalf of the Petitioner it is urged that the decree directs payment of the costs of the suit to be taxed by the Taxing Officer of this Court. So, unless the costs are taxed no cost can be deposited. Consequently, the time to deposit is extended until the costs are taxed. 20. It is also urged that the decree was not made on the ground of non-payment of rent and, therefore, the proviso of cl. (3) is not applicable in this case. 21. The answer to these contentions is simple. If the decree for ejectment is not on the ground of non-payment of rent, the Petitioner is not required to make any deposit and therefore, she need not ask for leave of the Court to make the deposit. That part of the prayer in the notice of motion is obviously bad. 22. If, on the other hand, the decree was on the ground of non-payment of rent the tenant, before she can take the benefit of the Ordinance, must deposit the amounts referred to in the proviso, within 30 days from the date of the decree. 23. The proviso does not require that the taxed costs have to be paid. All that is necessary is to pay such costs, if any as the Court may direct. 24. If the Petitioner thought that she was a thika tenant and was entitled to take benefit under the Ordinance, she should have made an application within 30 days from the date of the decree. 25. It may be urged that there are certain decrees which were passed beyond 30 days from the date when the Ordinance came into force. I am not called upon to decide the point in this application as to whether in such cases the Ordinance would apply or not. I reserve this consideration for future when the question arises. 26. But in this case it is clear that the deposit has not been made within 30 days from the date of the decree. The tenant cannot get the benefit of the Ordinance without performing the obligation on which the benefit has been made dependent by the Ordinance. I reserve this consideration for future when the question arises. 26. But in this case it is clear that the deposit has not been made within 30 days from the date of the decree. The tenant cannot get the benefit of the Ordinance without performing the obligation on which the benefit has been made dependent by the Ordinance. I therefore, hold that this second question also must be answered against the Petitioner. On these grounds I dismiss the application with costs.