OUDH BEHARI SINGH Vs. SAILENDRA NATH BHATTACHARJEE

JUDGEMENT

(1.) This is an appeal by the judgment-debtor from an order dismissing his objection under section 47 of the Code of Civil Procedure to the execution of a decree obtained by the respondent against him as far back as the 30th Sept., 1939. This was a decree for ejectment from certain parcels of land which were held by the appellant under the respondent as a thika tenant. The execution out of which this appeal arises was filed on the 26th Aug., 1950. The appellant filed his objection under section 47 of the Code of Civil Procedure on the 29th Nov., 1955 claiming the value of the structures which admittedly had been built by him on the land demised. Both the courts found against him on this point. It is now argued on behalf of the appellant that in view of the Calcutta Thicka Tenancy (Amendment) Act, 1953, sections 4 and 5 of the Thika Tenancy Act, 1949 are applicable to the present proceedings but the proviso to section 1(2) of the Calcutta Thika Tenancy (Amendment) Act, 1953 evidently means suits, appeals and proceedings under the Thika Tenancy Act of 1949 and it does not contemplate suits disposed of long before the Thika Tenancy legislation came into force, because there is nothing cither in this proviso or anywhere else giving retrospective operation to the provisions of the Thika Tenancy Act to suits disposed of long before the Thika Tenancy legislation came into force. There is also nothing to show that merely because the execution was pending when this Amending Act came into force, the provisions of the Thika Act would be applicable. It is only if section 28 of the Thika Tenancy Act of 1949 were applicable that the tenant might have claimed a certain amount of relief, but as that section was omitted by the amending Act and as that amending Act has to be deemed to have always applied to all suits, appeals and proceedings pending before any court or before the Controller or before a person deciding an appeal under section 27 of the said Act on the date of commencement of the Calcutta Thika Tenancy (Amendment) Ordinance, 1952. Sec. 28 must be held to have been omitted long before the present application under section 47 of the Code of Civil Procedure was filed, with the result that it cannot be held to be applicable to these proceedings by any stretch of imagination. On behalf of the appellant reliance was placed on the decision in Deorajin Debi Vs. Satyadhan Ghosal, 58 C.W.N. 64 the facts of which were different from the facts of this case, because in that case there was actually an application filed under section 28 at a time when that section was still in force and it came to be omitted only during the pendency of a revision from the order passed under section 28. But in this case, as already pointed out, section 28 was no longer in force when the application by the present applicant under section 47 of the Code of Civil Procedure was made. That being so, both the courts were right in the view they took, namely, that the provisions of the Thika Tenancy Act were not applicable to this case and the appellant was not entitled to any relief in the shape of the value of the structures which he had: admittedly built on the land demised.