RAI HARENDRA NATH CHOUDHURI Vs. DEBENDRA NATH DE

JUDGEMENT

(1.) This appeal is by the decree-holder and it arises out of proceedings for execution of a decree for ejectment of a non-agricultural tenant. The decree was obtained in Title Suit No. 128 of 1942 of the 1st court of the munsif at Sealdah sometime in the year 1943. In the judgment on which the decree followed, there was a passage to the following effect:

(2.) Within 30 days from the Hate of the decree, the decretal amount on account of arrears of rent was deposited by the tenant in court and as the original Non-Agricultural Tenancy Act of 1940 was then in force through extension of life by subsequent Acts, the decree-holder did not put the decree into execution an account of the said deposit. On September 23, 1943, the money deposited by the tenant was withdrawn by the landlord-decree-holder. Thereafter, after the expiry of the old Non-Agricultural Tenancy Act and the coming into operation of the new Non-Agricultural Tenancy Act of 1949, the decree-holder put the decree for ejectment into execution. To this execution, an objection was taken by the tenant that the decree was no longer executable in view of the deposit made by the tenant, having regard to the observations made in the judgment as quoted above. The tenant further claimed that, in any event, lie was entitled to protection under the new Non-Agricultural Tenancy Act of 1949. The learned munsif gave effect to the tenant's first contention and he held that as the judgment-debtor had made the deposit, as stated above, within 30 days of the date of the decree, the decree had become inoperative and infructuous. In this view of the matter, he dismissed the decree-holder's execution case. On appeal this decision has been maintained by the learned Additional District Judge, 24-Pargands, though on a different ground. This learned Judge has held that on a proper interpretation of the judgment of the original court, the extract quoted above, cannot be read as rendering the decree inexecutable for all times by reason of the deposit of the decretal amount within 301 days from the date of the decree. According to the learned Additional District Judge, those observations in the judgment of the original court which passed a decree only meant that the execution of the decree could be "avoided" by such deposit or, in other words, that the decree could not be put into execution, if the said deposit was made in time, obviously under Section 3 proviso of the old Non-Agricultural Tenancy Act of 1940 which was then in force. The learned Additional District Judge was, however, of the opinion that, in view of Section 88 of the new Non-Agricultural Tenancy Act of 1949, the tenant was entitled to protection under this new Act and that, accordingly, the execution case was not maintainable and the decree could not be executed, as it offended the provisions of this new Act of 1949. In this view of the matter, the learned Additional District Judge affirmed the decision of the learned munsif giving effect to the tenant's objection to the execution of the present decree. From this appellate decision, the decree-holder has come up on appeal.

(3.) I entirely agree with the construction of the decree, made by the learned Additional District Judge. The extract quoted from the judgment really meant, as the learned Additional District has observed, in his present judgment that the decree could not be put into execution so long as the old Non-Agricultural Tenancy Act of 1940 was in operation, if the judgment-debtor complied with the provision for deposit in time. In view, however, of the recent Bench decision of this Court in the lease of Jadunath Das v. Mrinal Kanti Saha and Ors. (1(sic)4) 58 C.W.N. 562, it must be held that as, at the time when the new Non-Agricultural Tenancy Act of 1949 came into operation there was no proceeding pending in the present case, Section 88 of this new Act would have no application and the tenant would not be entitled to seek protection under the provisions of this new Act. Sitting singly, I am bound by the Bench decision, to which reference has been made above, and, accordingly, it is not possible for me to uphold the judgment of the learned Additional District Judge, based as it is on the other ground, mentioned by him, which proceeds on a different view.