SACHINDRA NATH BOSE Vs. JYOTI BIKASH GHOSE

JUDGEMENT

(1.) This appeal is directed against the judgment dated 23rd August, 1976 passed by the learned Additional District Judge, 6th Court, Alipore in Miscellaneous Appeal No. 434 of 1976 affirming the Order No. 55 dated 24th April, 1976 passed by the learned Munsif in Miscellaneous Case No. 10 of 1976. The judgment-debtors are the appellants in the instant appeal and the said Miscellaneous Case No. 10 of 1976 arose out of an application made by the judgment-debtors under Section 47 read with Section 151 of the Code of Civil Procedure inter alia contending that the decree for eviction passed in Title Suit No. 137 of 1968 under the West Bengal premises Tenancy Act was null and void and as such the said decree was not executable. It appears that the landlords brought Title Suit No. 137 of 1968 against the appellants judgment-debtors Sachindra Nath Bose and Samarendra Nath Bose for recovery of khas possession of the disputed premises under the West Bengal Premises Tenancy Act after eviction of the said two tenants from the suit premises. The said suit was decreed and the said decree was affirmed by the Court of Appeal below in Title Appeal No. 525 of 1969. Thereafter the judgment-debtors preferred an appeal before this Court being Second Appeal No. 634 of 1970 but the said appeal was also dismissed for non-prosecution. The aforesaid decree for eviction was put to execution in Title Execution Case No. 59 of 1972 and on 4th February, 1976, the said application under Section 47 read with Section 151, C. P. Code was filed by the appellants judgment-debtors challenging the validity of the decree. For appreciating the contentions of the judgment-debtors appellants, certain facts with dates are relevant and such facts are set out here-under:

(2.) On August 8, 1966, the suit property was purchased by the decree-holder and on March 17, 1967, the said Ejectment Suit No. 137 of 1968 was instituted by the landlord on the ground of reasonable requirement of the suit premises by the landlord and also on the ground of default. The decree for eviction was passed in the said Title Suit No. 137 of 1968 on 14th February, 1969 and on August 21, 1969, the said decree was affirmed by the Court of Appeal below in Title Appeal No. 525 of 1969 and on August 16, 1969, a second appeal was preferred before this Court and on March 14, 1972 the said second appeal being S.A. No. 634 of 1970 was dismissed for non-prosecution. During the pendency of the said appeal before this Court, the West Bengal Premises Tenancy Act was amended and the Amending Act XXXIV Of 1969 came into operation on l4th November, 1969. The West Bengal Premises Tenancy (Amendment) Act XVIII of 1970 also came into force on March 6, 1970.

(3.) Sub-section (3A) of Section 13 of the west Bengal Premises Tenancy Act, 1956 was added with retrospective operation. It is provided for in the said subsection (3A) of Section 13 of the West Bengal Premises Tenancy Act that where a landlord has acquired his interest in the premises by transfer, no suit for recovery of possession of the premises on any of the grounds mentioned in Clause (f) and Clause (ff) of Sub-section (1) of Section 13 shall be instituted by the landlord before the expiration of a period of three years from the date of his acquisition of such interest. The judgment-debtors under one of the amended provisions of the Act namely under Section 17E made an application for setting aside the decree of eviction passed in the said Title Suit and the said application was filed on 7th May, 1970. On August 9, 1972 the said application under Section 17E was dismissed. The judgment-debtors contended in their application under Section 47 read with Section 151 of the Coda of Civil Procedure that the decree was passed on the ground of reasonable requirement of the landlord, but the suit having been instituted before the completion of three years from the date of purchase of the suit premises by the landlord, such suit on the ground of reasonable requirement viz. on a ground under Clause (ff) of Section 13 (1) of the West Bengal Premises Tenancy Act could not have been instituted but such suit having been instituted within the prohibited period, the decree passed in the said suit was a nullity and as such not executable. The learned Munsif, however, held in the said Miscellaneous Case No. 10 of 1976 arising out of the aforesaid application under Section 47 read with Section 151 of the Code of Civil Procedure that although Sub-section (3A) of Section 13 of the West Bengal Premises Tenancy Act was enforced with retrospective operation the decree passed in the Title Suit was not a nullity and as such the executing court could not go behind the decree. In that view of the matter, he dismissed the said Misc. Case No. 10 of 1976. The judgment-debtors thereafter preferred the said Misc. Appeal No, 434 of 1976 before the Court of Appeal below. The respondents, however, contended that although the judgment-debtors had the privilege to have the Judgment and decree passed on this ground of reasonable requirement set aside by making an application under Section 17E on the ground that such decree for reasonable requirement was passed in favour of a landlord who instituted a suit for reasonable requirement within three years from the date of purchase, the petitioner in the instant casa pursued two remedies, one being the second appeal preferred in this Court against the judgment and decree passed in the said ejectment suit and the other being the said application under Section 17E of the West Bengal Premises Tenancy Act but, as before the hearing of the said application under Section 17E, the said Second Appeal was dismissed for default on 14th March, 1972, the decrees passed by the Courts below had merged in the decree passed by this Court in the Second Appeal and at the time of disposal of the said application under Section 17E, only the decree passed by this Court was in force and as such under Section 17E, the decree of this Court could not have been set aside, Apart from that in view of dismissal of the said application under Section 17E, the judgment-debtors were precluded from questioning the validity and legality of the said decree for eviction passed against them. It appears that the Court of Appeal below accepted the contention of the decree-holders respondents and held that it was no longer open to the judgment-debtors appellants to contend that the decree under execution was a nullity and as such the execution proceeding was not maintainable. In that view of the matter, the learned Additional District Judge, 6th Court, Alipore, dismissed the said Miscellaneous Appeal and affirmed the order passed by the learned Munsif,