COMMISSIONER Vs. BASUMATI BAG

JUDGEMENT

(1.) I agree with the opinion of my learned brother that the appeal should be dismissed with costs.

(2.) This case has certain features of its own. It arises out of application for execution, levied by the respondent's predecessor-in-interest, Sm. Prafulla Bala Pakhira, on November 10, 1959, against the appellant, the Commissioners for the Port of Calcutta, under the provisions of Order XXI, Rule 32 of the Code of Civil Procedure, of a compromise decree, passed in a suit filed by the appellant, initially on December 23, 1953, and thereafter refilled on February 13, 1954, in the Court of the learned Munsif, Howrah. To this suit for eviction from the disputed tank and for damages the defence, inter alia, was that the tenancy was being held for over 50 years and the monthly rent of Rs. 36 was raised to Rs. 105 and the defendant has acquired a non-evictable right. In the said execution petition Sm. Prafulla Bala prayed, inter alia, for attachment and sale of the disputed tank on the ground that the appellants, viz., the Port Commissioners, did not honour the terms of that part of the compromise decree, namely, by executing and registering the lease of the tank in her favour in spite of her fulfilling the terms and conditions of the said compromise decree.

(3.) To this execution, the appellants filed a petition of objection, giving rise to Miscellaneous Case No.2 of 1960, inter alia, stating that the payments as agreed to in the compromise petition were not made by the lady within the stipulated time and accordingly she was not entitled to have any indenture of lease of the tank with its bank, executed and registered by the Port Commissioners. The miscellaneous case was allowed by the learned Munsif. Prafulla Bala preferred an appeal therefrom. It was allowed by the learned Subordinate Judge. In other words, the appellants' application under Section 47 of the Code was dismissed and the execution case, started by the respondent's predecessor, was directed to proceed. The instant second Miscellaneous Appeal, at the instance of the Port Commissioners, is directed against the said appellate order.