GOPI NATH GHOSE Vs. GANESH CHANDRA BANERJEE

JUDGEMENT

(1.) On 22nd December, 1945, Respondent No. 1 and the predecessors of the other Respondents filed Title Suit No. 533 of 1945 in the court of the first Munsif at Alipore for eviction of certain persons including the present judgment-debtor, who is the Appellant before me, from the disputed land. The said suit was decreed on September 21, 1946. This decree was put into execution in Title Execution Case No. 108 of 1948 after dismissal of the Defendant's appeal from the trial court's decree. On September 28, 1948, the Defendant-judgment-debtor filed objections under Section 47 of the Code of Civil Procedure (Miscellaneous Case No. 307 of 1948) and applied for stay of execution. The prayer for stay was eventually refused on October 1, 1948. Prior to the filling of the above Miscellaneous case, the Defendant's Second Appeal from the ejectment decree had been summarily dismissed by this Court. Further attempts to stay the execution proceedings finally failed on January 15, 1949, but on January 26, 1949, when the Section 47 objections were rejected, the court took into consideration the judgment-debtor's objection as to the maintainability of the execution proceedings under Section 3 of the Calcutta Thika Tenancy Ordinance, 1948, which had come into force in the meantime and, eventually, the execution case was stayed under that section. On September 5, 1950, the court directed the parties to show cause why the stay order should not be vacated and, on March 6, 1951, the said stay order was actually vacated by the court. Thereupon, on March 8, 1951, the tenant judgment-debtor applied inter alia for rescission of the ejectment decree under Section 28 of the Calcutta Thika Tenancy Act, and, on July 12. 1951. the said application was dismissed and the execution case was ordered to proceed in accordance with law. On August 4, 1951, the judgment-debtor applied for review of the above order in Miscellaneous Case No. 186 of 1951 and, his prayer for stay havinar been unsuccessful, he again filed another application under Section 47 of the Code of Civil Procedure giving rise to another Miscellaneous Case No. 226 of 1951, and there he renewed his prayer for stay. On November 13, 1951, the Section 47 Miscellaneous Case No. 226 of 1951 was dismissed as also the other Miscellaneous Case No. 186 of 1951 under Order XLVII, Rule 1 of the Code of Civil Procedure, and, thereafter, on February 18, 1952, the judgment-debtor moved this Court in revision and obtained Civil Rule No. 399 of 1952 with ad interim stay. This Rule was discharged on May 14, 1952, but the judgment-debtor had meanwhile filed Miscellaneous Appeal No. 756 of 1951 (Section 47 Code of Civil Procedure) against the dismissal of his Miscellaneous Case No. 226 of 1951 under the said section. On June 27, 1953, this Miscellaneous Appeal was dismissed for default but, again, an the meantime, he (the judgment-debtor) had filed another application under Section 47 of the Code of Civil Procedure (Miscellaneous Case No. 128 of 1953), but, on July 17, 1954, it was rejected, whereupon the judgment-debtor filed Miscellaneous Appeal No. 653 of 1954, and, upon dismissal of this appeal by the lower appellate court, he came up to this Court in the present second Miscellaneous Appeal No. 14 of 1955' and obtained ad interim stay.

(2.) I have set out above the long history of this litigation as it forms interesting reading, but, really speaking, only a short point is involved in this appeal. The only question is whether the tenant judgment-debtor is entitled to resist execution under the Calcutta Thika Tenancy Act. As I have already said, the judgment-debtor's application under the now defunct Section 28 of the Calcutta Thika Tenancy Act was dismissed up to this Court and that decision, right or wrong, binds him in law. It was pointed out to me that the proceedings under the said Section 28 were pending on 21st October, 1952, when the Calcutta Thika Tenancy Amendment Ordinance of 1952 came into force, and, therefore, under the decision of this Court, reported in Dearjin Debi and Anr. v. Satyadhan Ghosal and Ors. : 58 C.W.N. 64, to which I was a party,-the contrary view in Mahadeb Lal Kanodia v. The Administrator-General,West Bengal 1955 59 CalWN 384 being, to say the least, unconstitutional, according to the Appellant,-the ejectment decree ought to be rescinded, but. unfortunately for the judgment-debtor, Chunder, J. who decided the above Civil Rule No. 399 of 1952 took a different view and, in effect, he dismissed the present judgment-debtor's application under that section, and, as I have already said, that decision, right or wrong, binds the said judgment-debtor in law. Section 28, therefore, cannot help this judgment-debtor and, naturally, he has to fall back upon the existing sections of the Act. The only provision, to which he could refer in this connection was Section 5, but, in my opinion, the courts below have rightly rejected his contention. Section 5, as it appears to me, applies only to original proceedings for eviction of a thika tenant and, as to decrees, it may effect them only if they are made in past Act suits,-and not, at any rate, when they are pre-Act decrees. The section has no application where a decree for ejectment, validly obtained before the commencement of the Act, is sought to be executed. There is nothing in the present Act which apart from the old Section 28, can affect such a decree and the said Section 28, now repealed, under which in the light of the present Act, the decree might have been reopened or rescinded, Dearjin Debi and Anr. v. Satyadhan Ghosal and Ors. : 58 C.W.N. 64, does not help the judgment-debtor in view of what has already been stated above. On getting the decree for ejectment, the decree-holder got a vested right which could not be touched or affected in the absence of express provisions or necessary implications to that effect. The old Section 28 was intended to have this effect and similarly also Section 5(2) of the Calcutta Thika Tenancy Amendment Ordinance of 1952. Certain pending proceedings under the said Section 28 were saved by the amending Act of 1953, as held by us in Dearjin Debi and Anr. v. Satyadhan Ghosal and Ors. : 58 C.W.N. 64, but Chunder. J.'s decision in the present case precludes the present judgment-debtor from availing of that decision or Section 28 at all. There was also, admittedly, no proceeding pending under Section 5(2) of the 1952 Ordinance at the date of the amending Act of 1953 (West Bengal Act VI of 1953) and, therefore, Section 9 of this latter Act also would not be of any assistance to the Appellant and Section 5 of the present Act, as I have already said, would not apply to effect execution of pre-Act decrees. Such decrees did not become void, inoperative or infructuous in law under any part of the said section. The Appellant, therefore, must suffer ejectment in the present execution and his appeal must fail.

(3.) I, accordingly, dismiss this appeal but, in the circumstances of this case, I would make no order for costs in this Court.