DHIRENDRA NATH MUKHERJEE & ORS. Vs. MOHENDRA PROSAD

JUDGEMENT

(1.) This matter, in our opinion, should be sent back to the trial Court for decision of the question which I shall presently, indicate. The appeal is against an order, of the learned Subordinate Judge, Second Additional Court, Alipore. The appellants are the decree-holders and the suit in respect of which this appeal arises was a suit for ejectment and for arrears of rent and mesne profits. The said suit was decreed on the 5th March. 1948, and on the 1st Sept., 1048, an execution proceeding was started. In Oct., 1048, the Thika Tenancy Ordinance of 1948, came into existence. Because of the provisions of sec. 3 of the said Ordinance the execution case was stayed. On the 28th Feb., 1949. the Calcutta Thika Tenancy Act of 1949, came into force and thereafter on the 17th Sept., 1949, an application was made by the decree-holders for proceeding with the execution case on the ground that the new Act permitted them to do so. That application was granted Certain proceedings were thereafter taken to which it is not necessary for the present purpose to refer. Ultimately the judgment-debtor, when the said execution case was again proceeded with, filed objection under Order 21. rule 2, and under section 47 of the Code of Civil Procedure. The said objections were (a) that there had been adjustment of the said decree and (b) that the judgment-debtor was a Thika tenant and therefore he was entitled to the benefits of the provisions of the Act of 1949. The trial Court dismissed both the objections and against that order there was an appeal. During the pendency of the said appeal the Thika Tenancy Ordinance of 1052, came into force. The lower appellate Court came to the conclusion that the finding of the trial Court on the question as to whether or not there was an adjustment of the decree should stand but it held that because the Thika Tenancy Ordinance of 1952 had in the meantime come into force the matter has to be sent back to the lower Court. The precise order of the lower appellate Court was as follows : "If in view of the learned lower Court the judgment-debtor came within the definition of Thika tenant as promulgated by the Ordinance he will next have to decide how far the retrospective operation has been given to this definition in order to bring this case within the scope of section 28 of the Calcutta Thika Tenancy Act, 1949". I should have mentioned that the Order (Ordinance?) of 1952, gave a wider definition of thika tenant than what was to be found in old Act of 1949, and the question was whether or not the judgment-debtor came within the expanded definition as given in the said Order (Ordinance?). Under the provisions of section 28 of the old Act the Court which passed the decree could vary or rescind the same if it was of opinion that the decree or order was not in conformity with any of the provisions of the Act of 1949. It appears from the order of the lower appellate Court, to which I have just now referred, that the lower appellate Court was troubled with the question as to whether or not section 28 would still be applicable after the promulgation of the Order (Ordinance?) of the 21st Oct., 1952, and he referred the two questions for the decision of the lower Court, namely, the question as to whether or not the judgment-debtor, was a thika tenant within the definition of Thika tenant as given in the said Order (Ordinance?), secondly, whether or not section 28 of the Thika Tenancy Act of 1949,- would be applicable. It should be noted at this stage that the Order (Ordinance?) of 1952, did not affect section 28 of the Act of 1949. The only effect of that Order (Ordinance?) was to make the definition of Thika tenant more wide. So the question as to the application of section 28 did not arise in the said appeal but the said order having been made and there no appeal having been filed against that order that order must stand. After the said order was made the matter went back to the lower Court and the lower Court came to the conclusion that the defendant was a Thika tenant and that section 28 of the Act would apply and on that view of the matter passed an order varying the old decree, on the terms mentioned in that order. The substance of those terms is that the judgment-debtor shall not be evicted from the tenancy in question but would be liable to pay the arrears of rent from the 1st of Magh. 1352 B.S., till Pous, 1353 B.S., at a certain rate and taxes for four quarters at certain rates mentioned in that order.

(2.) There was again an appeal against the said order and the lower appellate Court dismissed the appeal. It is against that decision that the present appeal has been filed before us.

(3.) The lower appellate Court in deciding the said appeal came to the conclusion that section 28 of the Thika Tenancy Act was applicable to the present case, and that the variation of the decree as made by the lower Court should be upheld.