LALJI AGARWALLA JAIN Vs. JHINGU GOALA

JUDGEMENT

(1.) A short point of law arises in this appeal but the point is of some importance and not altogether free from difficulty.

(2.) On February 21, 1947, the Appellant Lalji Agarwalla obtained a decree for ejectment, arrears of rent and damages against_the Respondent Jhingu Goala in T. S. No. 384 of 1945 of the Court of the 2nd Munsif at Alipore. The property in dispute was non-agricultural land and the Respondent was a non-agricultural tenant under the then continuing Bengal Non-Agricultural Act, 1940. In the suit the Appellant's claim for ejectment was resisted inter alia under the above Act. The Court, however, did not stay the suit but on February 21, 1947, it made a conditional decree for ejectment, etc., in these terms:

(3.) This decree was eventually put into execution in T. Ex. Case No. 108 of 1948 which was started on July 24, 1948. In the meantime, it appears, the judgment-debtor (who is the Respondent before us) had deposited a sum of Rs. 582-8 on March 21, 1947, that is, within one month as stated in the decree in purported compliance therewith. A question, accordingly, arose whether, in view of the express terms of the decree, the decree for ejectment retained its executability after the above deposit. The decree-holder contended at that stage that the amount, deposited as aforesaid, was insufficient and the learned Munsif, by his order dated September 9, 1949, eventually found that, although the amount was sufficient on the figures, mentioned in the decree, the decretal costs had been calculated wrongly therein at Rs. 96-8-0, whereas it ought to have been Rs. 98-11-6 pies. As this was obviously a mistake of the court's office, the learned Munsif allowed the judgment-debtor time till the 20th to deposit the small deficit of Rs. 2-3-6 pies and, that deposit having been duly made, he, by his order dated October 29, 1949, accepted the judgment-debtor's deposit as quite in compliance with the terms of the decree and struck off the execution case upon the view that, by reason of the deposit, the decree for ejectment (and obviously also the other parts of the decree) could not be executed. The decree-holder appealed from this order and the learned appellate court, by its judgment, dated September 9, 1950, construed the decree as one passed under the proviso to Section 3 of the Bengal Non-Agricultural Tenancy Act, 1940, referred to above, and upon that view (which seems to us to be perfectly correct) he held that, the said Act being no longer in force, the stay under the proviso had spent itself and, accordingly, the execution would proceed according to law irrespective of the validity or sufficiency of the judgment-debtor's deposit. In the result, he allowed the appeal, set aside the learned Munsif's order, dated September 9, 1949, which meant also the setting aside of the consequential order, dated October 29, 1949. striking off the execution case.