PEARY DEBI Vs. DAKHINESWAR SAMANTA

JUDGEMENT

(1.) This is art application under Article 227 of the Constitution of India against an order of the appellate authority whereby the authority dismissed the appeal. The appeal to the appellate authority was against ah order by which the Court adjourned the matter for considering the question of substitution on the basis of a nadabi, i.e. on a deed declaring that the executant had no interest in the property. The order itself is no final order and it did not affect the rights of the parties in any way. Therefore, that order was not appealable. But the substantial question in this matter is whether there is any abatement of any proceeding under Sec. 5 of the Calcutta Thika Tenancy Act and if there be any abatement, whether there is any time limited by law during which the abatement should be set aside or the right would be lost.

(2.) An order was obtained against the Petitioner, a thika tenant, for ejectment. While that matter was continuing and was pending in the trial Court for execution, the person, in whose favour the order was made, died and thereafter, an application was made at least 90 days after the death for bringing the heirs on record on two -fold grounds, the first ground being that the heirs inherited the right of the last holder to execute the order of the Controller for eviction and it is urged, in the second instance, that though the order was passed in favour of one Surj Bala Devi, the real owner of the property was Dakshineswar Samanta and therefore, he should have been allowed to execute the said order for eviction. That matter was considered. The two matters stand on two different footings. So far as the heirs are concerned, they inherited the right to execute the order. The right to execute an order and take possession of the property is itself property and therefore, it is heritable.

(3.) The next question is that if the person who inherited such right would be debarred from proceeding with the execution, if they did not come within any time limited by law. The Calcutta Thika Tenancy Act makes no provision for time within which such a person should apply for proceeding with execution. If a proceeding is started by or against a person and if that person dies, that dead person cannot further proceed in the matter; hence it abates so far as that person is concerned and if there is any such abatement there is no time of limitation to bring the heirs on record either under the Indian Limitation Act or otherwise. Article 176 and Article 172 or Article 171 refer to the Code of Civil Procedure only.