ASTARAM BAGDI AND ORS. Vs. SITANATH MANDAL

JUDGEMENT

(1.) The real question in these two appeals under clause 15 of the Letters Patent is about the interpretation of the words "liable to ejectment" in section 9 of the Non-Agricultural Tenancy Act. The respondent Sitanath Mondal having obtained separate decrees for ejectment against Astaram Bagdi in one suit and against Panchu Bagdi in another on the allegation that the tenancies had been determined by service of 15 days notice, put these decrees into execution. The execution cases were stayed under section 3 of the Non-Agricultural Tenancy Act, 1949. The stay orders were, however, vacated after the Non-Agricultural Tenancy Act, 1949, came into force. Objections were then raised on behalf of the judgment-debtors that they being non-agricultural tenants within the meaning of the Non-Agricultural Tenancy Act, 1949, for more than one year and less than 12 years without a lease in writing, the provisions of section 9(iii) applied to the case and they could not be ejected in these execution proceedings, as the only ground on which they were ''liable to ejectment" under these provisions did not exist. The objection was rejected by the executing Court, but was ultimately accepted as valid by the District Judge, Murshidabad, on appeal. On Second Appeal to this Court Mr. Justice Sen has held that section 9 "lays down the conditions under which an ordinary non-agricultural tenant, who has not held for twelve years may be ejected and it cannot operate to stay the operation of a decree already obtained by the landlord under the old provisions of law". In that view he allowed the appeal, restored the decision of the learned Munsif and ordered that the execution cases should proceed. The correctness of this decision is challenged before us.

(2.) Before we address ourselves to the question of the interpretation of section 9 of the Non-Agricultural Tenancy Act it will be proper to mention that section 88 of the Non-Agricultural Tenancy Act, 1949, will apply to proceedings in execution for ejectment that were pending on the date the Act came into force. The proceedings in this case were pending on the date the Act came into force and so the provisions of the Act in so far as they applied to the execution case will apply to the present case. If, therefore, on a proper interpretation of section 9 of the Act it should be held that ejectment even in execution proceedings of a non-agricultural tenant, who comes within section 9 is barred thereunder unless the grounds mentioned in that section exist, the judgment-debtor will be entitled to the benefit thereof and the fact that the decree was obtained before this Act came into force will not affect the question. This brings us to the real question for decision, namely, whether the bar against ejectment in section 9 applies to the execution proceedings as well.

(3.) On behalf of the appellants before us reliance was placed on the decision in Bamapati Bhattacharjee Vs. Lakshmi Bibi, (1) (57 C.W.N. 533) . It was said that that case has decided that section 7 of the Non-Agricultural Tenancy Act, 1949, gives protection against ejectment in execution proceedings also. On a perusal of the judgment of the case it is clear, however, that it is assumed there that the protection given by section 9 of the Non-Agricultural Tenancy Act extends to execution proceedings. That question was neither raised nor decided.