(1.) This application under Article 227 of the Constitution of India is directed against order No.373 dated 24th of January, 2013 passed by learned Civil Judge (Junior Division), Alipore in Misc. Case No.18 of 2007 arising out of Misc. Thika Execution Case No.2 of 1965.
(2.) It is the case of the petitioners that the O. P.s were the land owners of the suit property being Thika Land and that present petitioners along with O. P. No.13 became Thika tenants under the O. P.s. After the expiry of the lease granted by O. P.s. in favour of the petitioners and O. P. No.13 they filed Misc. Thika case No.314 of 1955 in the court of learned Civil Judge (Junior Division), Alipore. It was dismissed vide order dated 10th of February, 1964. O. P. preferred one appeal being Misc. Appeal No.292 of 1964. Learned sub-ordinate Judge, 6th Court at Alipore being the appellate court allowed said appeal by passing a decree of eviction against the thika tenants vide order dated 27th of August, 1964. The O. P. decree holders put said decree into execution being Thika Execution Case No.2 of 1965. The present petitioners judgment debtors filed one Misc. Case No.79 of 1965 under Section 47 of the Code of Civil Procedure challenging said execution case. It was dismissed on contest by learned executing court by observing that executing court cannot go behind the decree. It was dismissed vide order dated 19th of March, 1966. The present petitioner judgment debtors preferred one Motion being C. R. No.2372 of 1966 which was also dismissed on contest. Later on learned executing court allowed an application for amendment filed by the O. P. decree holders. Challenging said order the petitioner judgment debtors preferred one Misc. Appeal being 448 of 1973 which was dismissed on contest. The present petitioner judgement debtors preferred one Civil Rule being No.784 of 1974 in this court against said order of dismissal of appeal. Said rule was also dismissed by this court vide order dated 18th of June, 1975. Thereafter present petitioner judgment debtors filed another Misc. Case being No.75 of 1966 under section 47 of the Code of Civil Procedure. Said Misc. Case under Section 47 of the Code of Civil Procedure was dismissed for default on 19th of February, 1998. Later on present petitioner judgment debtors have filed another Misc. Case being No.18 of 2007 under Section 47 of the Code of Civil Procedure. By the order impugned dated 24th of January, 2013 said Misc. Case being No.18 of 2007 was dismissed by the executing court on contest. Hence is this revisional application.
(3.) Mr. Samiran Giri appearing for the petitioners submits that O. P. decree holders obtained a decree of eviction against the petitioner thika tenants under the Calcutta Thika Tenancy Act, 1949 vide judgment dated 27th of August, 1964. He submits that while the execution case being Thika Execution Case No.2 of 1965 was still pending the Calcutta Thika and other tenancies and lands (Acquisition and Regulation) Act, 1981 came into force. Said Act was later on amended by the Calcutta Thika Tenancy (Acquisition and Regulation) (Amendment) Act, 1993 with retrospective effect from 18th of January, 1982. According to him, in terms of Section 5 of said Act of 1981 as stood amended by Amendment Act of 1993 the thika tenancy lands vested to the State and that thika tenants became direct tenants under the State. He next submits that in terms of Section 19 of said Act of 1981 all proceedings including appeals and all proceedings in execution of orders passed in the proceedings including appeals under the Calcutta Thika Tenancy Act, 1949 pending on 19th day of July, 1978 for the ejectment of thika tenants and 'Bharatias' stood abated with effect from 19th July, 1978 as if such proceedings, appeals or execution proceedings had never been made. According to Mr. Giri in view of said specific provision namely Section 19 of said Act of 1981 the execution case being Thika Execution Case No.2 of 1965 became non-est. In support of his contention he refers a case law reported in (Narayan Chandra Ghosh & Ors. vs. Kanailal Ghosh & Ors., 2006 AIR(SC) 562) as well as a case law reported in (Mir Mohammad Ali vs. Sairunessa, 2008 3 CalHN 766).