KRISHNA GOPAL SAHA Vs. NITYANANDA SAHA

JUDGEMENT

(1.) This is a revisional application at the instance of the judgment debtor in Commercial Execution Case No. 142/79 of the 4th Bench of the City Civil Court, Calcutta. The order impugned is the one dated July 31, 1982, passed by the Id. Judge in Misc. Case No. 392/82. The decree-holder opposite party in executing a money decree against the judgment-debtor prayed for sale of tenancy right of the judgment-debtor in a shop and a godown. Such tenancy being governed by the provisions of the West Bengal Premises Tenancy Act (hereinafter referred to as the said Act), an objection was raised on behalf of the judgment-debtor under section 47 of the Code of Civil Procedure to the effect that such a tenancy not being transferable, cannot be put to sale in execution of the decree. That objection was overruled by the Id. Judge, when relying on a decision of this Court in the case of Dulaldas Mullick and Ors vs. Ganesh Das Damani and Ors. , AIR 1957 Calcutta 280 when it was held that such a tenancy being a part of the goodwill of the judgment-debtor's business, can be sold in execution of the decree. The said decision is being challenged now before us in the present revisional application.

(2.) Mr. Banerjee appearing in support of this revisional application has contended that under the special provisions of the said Act the tenant's right to transfer or assign the tenancy or any part of it being barred by law, the executing court acted beyond jurisdiction in directing sale of such a tenancy contrary to law. Reliance is placed by Mr. Banerjee on the provisions of section 14(1) and section 30(3) of the said Act.

(3.) Mr. Mitra appearing on behalf of the decree-holder has contended in support of the order passed by the Id. Judge that the amended provision of section 60(1) of the Code of Civil Procedure would show that such a tenancy in respect of a non-residential building can be attached and/or sold in execution of a decree. Referring to clause (kc) of section 60(1) of the Code, it has been contended by Mr. Mitra when the interest of a lessee of a residential building Governed by the rent restriction laws alone has been exempted from attachment and sale, it establishes by necessary implication that the interest of a lessee of a non-residential building is not so exempted and as such, can be attached or sold in execution of a decree.