BISWA BHUSAN BOSE Vs. KUSUM AGARWALLA

JUDGEMENT

(1.) This is a revisional application at the instance of the decree-holders arising out of an execution case, being Title Execution Case No. 25 of 1971, of the First Court of the learned Subordinate Judge, Alipore, District 24-Parganas. The revisional application is being heard on contest by the sole judgment-debtor. The orders impugned in the present revisional application are the two orders dated July 3, 1980, and July 22, 1980 passed by the learned Subordinate Judge. By the first order the learned Subordinate Judge rejected an application for amendment to the execution petition filed by the decree-holders and by the second order he allowed an objection under section 47 of the Code of Civil Procedure filed by the judgment-debtor in the aforesaid execution case which registered as Mescellaneous Case No. 6 of 1972. Upholding one out of the two objections raised under section 47 of the Code, the learned Judge by his order dated July 22, 1980, has held that the decree under execution is a nullity, and as such, is not executable.

(2.) Premises No. 3, Ashoke Road, Calcutta, formed a part of the estate of late Sribhusan Bose. The judgment-debtor obtained a lease in respect of a part of the said premises more fully described in the plaint schedule from the two Executors appointed under the Will of the said late Sribhusan Bose. The lease was for 7 years being effective from January 1, 1966. The rent agreed to be paid was Rs. 1,500/- per month inclusive of service and other charges. The lease contained the usual terms to the effect that the lease would maintain the leasehold property on proper repairs and would not raise any permanent structure in any part thereof. On an allegation that the judgment-debtor lessee had failed to pay rent since September, 1966, and had further committed breach of the covenants contained in the lease by not maintaining the leasehold property on appropriate repairs and having raised permanent structures in a part thereof, the decree-holders as plaintiffs filed Title suit No. 29 of 1970 on March 18,1970. In filing the suit they claimed that they were the legatees under the Will of the Sribhusan Bose and the Executors having assented to the legacies in their favour, the lessee attorned I their favour by paying rent to them since May, 1969.

(3.) The lease being one for 7 years would be governed by the provisions of the West Bengal Premises Tenancy Act (hereinafter referred to as the said Act). Such being the position, the plaintiffs in filing the suit only made out a case of forfeiture under the lease itself but further pleaded that they are entitled to a decree for eviction under section 13(1) of the said Act on the two twofold grounds of (1) default and (2) the lessee having committed acts contrary to the provisions of clauses (m), (o) and (p) of section 108 of the Transfer of Property Act. In the suit the plaintiffs also claimed a decree for a sum of Rs.7,350/-, being the arrears of rent, from September, 1969 to 28th January, 1970, and for mesne profits.