PANCHUMANI DASSI Vs. BHUBAN MOHAN MOOKERJEE

JUDGEMENT

(1.) This is an appeal against an order of the Second Additional Subordinate Judge 24-Parganas, passed in Miscellaneous Appeal No. 565 of 1952 affirming art order passed by the First Munsif, Seal-dah.

(2.) The application out of which this appeal arises was made by the judgment-debtor under section 47 of the Code of Civil Procedure. There was a decree obtained against the judgment-debtor for possession. That decree was obtained at a time when the Bengal Non-Agricultural Tenancy Act of 1940 was in force. The decree was passed by consent; and it would be necessary for the purpose of determining this appeal to examine the terms of the said decree in greater details. It would be sufficient to say for the present that under the said decree the plaintiff became entitled to eject the judgment-debtor from the holding in question, but if the judgment-debtor pays up within the period of thirty days all arrears of rent up to the date of the decree, then the execution of the decree would be stayed. The judgment-debtor paid up the said amount within the time mentioned in the decree. Thereafter Act XX of 1949, being the Bengal Non-Agricultural Tenancy Act of 1949, was passed. The said Act came into force on the 5th May, 1949. After the said Act was passed and on the 29th Sept., 1951, the decree-holder made an application for execution of the said decree. Objection was taken to such execution by the judgment-debtor under section 47 of the Civil Procedure Code. One of such objections was that the present application for execution was not maintainable in view of the provisions of Act XX of 1949. The said objections were overruled by the learned Munsif before whom the matter came up for hearing, and he held that the execution case was maintainable and not infructuous. An appeal was preferred against the said order to the Second Additional Court of the Subordinate Judge at Alipore. The lower appellate Court upheld the view taken by the learned Munsif and dismissed the appeal. Against the said order of the learned Subordinate Judge the present appeal has been preferred to this Court.

(3.) The learned Advocate appearing for the appellant raised three contentions before us. In the first place, he contended that in view of the provisions of Act XX of 1949, i.e., Bengal Non-Agricultural Tenancy Act, 1949, the present execution proceeding is not maintainable. He drew our attention to sections 7 and 88 of the said Act (Act XX of 1949). In order to understand his contention it would be necessary to refer to the material provisions in those two sections. Sec. 7 inter alia lays down as follows:-