NATHIA AGARWALLA Vs. JAHANARA BEGUM

JUDGEMENT

(1.) This is an appeal by special leave against an order of the High Court of Assam, dated August 14, 1959 rejecting summarily an appeal in an execution case. The appellants against whom the decree for ejectment is being executed are the widow and son of one Maliram Agarwala whose father Arjun Das had taken on lease the suit land from one Mohd. Soleman, predecessor-in -interest of the respondents. The decree was passed as far back as November 28, 1950 in a title suit filed against the appellants and was later confirmed by the High Court.

(2.) The present execution began on August 16, 1954 and was pending in the Court of the Subordinate Judge. L. A. D. Ganhati when the Assam Non-Agricultural Urban Areas Tenancy Act. 1955 (Assam Act XII of 1955) came into force from June 26, 1955. The appellants thereupon claimed the benefit of S 5 of the Act which grants protection from eviction to tenants, under certain circumstances. The Execution Court heard arguments and on November 12, 1957 held that the protection of S. 5 was available not only in pending suits and appeals but also in pending execution cases. In reaching this conclusion the learned Judge followed a decision of the Assam High Court reported in Harsukh Sarawgi vs. Mashulal Khemani, AIR 1957 Assam 22 and of the Calcutta High Court in Habiba Bibi v Ram Ranjan Mullick. AIR 1937 Cal 207. He accordingly fixed the case for evidence to find out if there existed facts necessary for the application of S 5 of the Act. Subsequently, the Presiding Judge having changed, the point was reopened on June 6, 1959 by the successor Judge. That learned Judge following a later decision of the Assam High Court (since reported in Suresh Chandra Datta v Ashutosh Dutta AIR 1960 Assam 24), held that S. 5 (1) (a) was not applicable to execution proceedings and the pending execution must proceed according to law. The only question in this case is whether the provisions of S 5 (1) (a) of the Tenancy Act' apply to pending execution proceedings.

(3.) The Act was passed "to regulate in certain respects the relationship between landlord and tenant in 'respect of non-agricultural land in urban areas of the State of Assam." It consists of 14 sections. Section 5, with which we are primarily concerned, may be read in full. It reads: