SATYADHYAN GHOSAL Vs. DEORAJIN DEBI

JUDGEMENT

(1.) , J.: This appeal is by the landlords who having obtained a decree for ejectment against the tenants, Deorajin Debi and her minor son on 10/02/1949, have not yet been able to get possession in execution thereof. Soon after the decree was made the Calcutta Thika Tenancy Act, 1949, came on the statute book. On 3/03/1949, the tenants made an application under O. 9, R. 13 of the Code of Civil Procedure for having the decree set aside. That application was dismissed on 16/07/1949. On 9/09/1949, an application was made by the tenants under S. 28 of the Calcutta Thika Tenancy Act alleging that they were Thika tenants and praying that the decree made against them on 2/02/1949, (sic) may be rescinded. This application was resisted by the landlords, the decree-holders, and on 12/11/1951, the Munsif holding that the applicants were not Thika Tenants with- in the meaning of the Thika Tenancy Act and accordingly the decree was not liable to be rescinded dismissed the application.

(2.) AGAINST this order tenants moved the High Court of Calcutta under S. 115 of the Code of Civil Procedure. By the time the Revision application was taken up for hearing the Calcutta Thika Tenancy Ordinance had come into force on 21/10/1952, and the Calcutta Thika Tenancy (Amendment) Act, 1953 had come into force on 14/03/1953.

(3.) ON behalf of the appellant it is urged that on a proper interpretation of S.1 (2) of the Calcutta Thika Tenancy Amendment Act, 1953, it should be held that S. 28 of the Original Act cannot, after the amending Act came into force, be applied to any proceedings pending on the date of the commencement of the Calcutta Thika Tenancy Ordinance, 1952. This question has been considered by us in Mahadeolal Kanodia v. The Administrator-General of West Bengal, Civil appeal No. 303 of 1956: ( AIR 1960 SC 936), in which judgment has been delivered today, wherein we have decided that S. 28 of the original Act is not applicable to such proceedings. If therefore this argument is available to the appellant the appeal will succeed as in that view of the law no relief under S. 28 of the original Act is available to the tenants and the order made by the Munsif on 12/12/1955, rescinding the decree for ejectment must be set aside.