TARA PADA BISWAS Vs. MRITUNJOY MUKHERJEE

JUDGEMENT

(1.) This is a second appeal by Tarapada Biswas, the defendant in a suit for ejectment, from an appellate order disallowing his objection under Section 47 of the Code of Civil Procedure.

(2.) The facts which are not in dispute are briefly as follows. A suit for ejectment was filed against the present appellant, on the 8th June, 1940, after the commencement of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940. That Act came into force on the 30th May, 1940. There was a decree by the Trial Court on the 2nd January, 1941. The tenant defendant applied for stay of the execution of the decree for ejectment on the 15th January, 1941, under Section 3 of the temporary Act. Although as yet no application was made for executing the decree a stay was ordered on the 21st January, 1941. The present appellant filed an appeal from the decree and that was dismissed on the 13th March, 1942. The decree-holder filed an application for executing the decree for costs on the 29th July, 1942. That execution was dismissed on full satisfaction on the 3rd April, 1943. On the 15th May, 1949, the West Bengal Non-Agricultural Tenancy Act, 1949, came into force. There was then an application on behalf of the decree-holder for vacating the stay order, and the stay order was vacated on the 3rd April, 1952. On the 3rd May, 1952, the execution case out of which this appeal arises was filed. On the 6th September, 1952, the judgment-debtor filed an objection under Section 47 of the Code of Civil Procedure saying that the execution could not proceed in view of Section 88 of the Act of 1949. The Trial Judge upheld that objection, but the appellate Judge on appeal by the decree-holder disallowed it. It is from that appellate order that the appellant now appeals.

(3.) The question for decision in this appeal is whether Section 88 of the Act of 1949 on a proper construction applies to the present case. A subsidiary but nonetheless Important question which arises is whether Section 88 on a proper construction makes available to the judgment-debtor in execution proceedings all the provisions of the Act of 1949 like Ss. 7 and 9.