SURESH CHANDRA DATTA Vs. ASHUTOSH DUTTA AND ORS.

JUDGEMENT

(1.) THIS is judgment -debtor's appeal. The Respondent decree -holder got a decree for ejectment of the Appellant. There arc two main grounds on which the execution is objected to by the present Appellant. It is firstly urged by him that after the decree had been obtained, there was a compromise between the decree -holder and the judgment -debtor under which the decree -holder had undertaken not to eject the judgment -debtor for five years and the judgment -debtor was to pay up the rent. In pursuance of the aforesaid agreement, the judgment -debtor had been regularly paying rent. This compromise is set up as a defence to the ejectment of the Appellant in execution of the decree.

(2.) THE next contention is that the judgment debtor is entitled to the protection of Section 5 of the Assam Non -agricultural Urban Areas Tenancy Act, 1955 (Assam Act 12 of 1955). Relying upon certain observations made in the case of Harsukh Sarawgi v. Mashulal Khemani : AIR 1957 GAU 22, the court below has held that it is not open to judgment -debtor to get benefit of Section 5 in execution proceedings. Apart from those observations we are inclined to agree with the court below on the interpretation of Section 5 of the Act itself. Section 5 or the Act provides as follows:

(3.) I agree with the view expressed by my learned brother and have very little to add. The only point that I would like to clarify in this connection, is in response to an argument advanced by Mr. Shoam on the interpretation of Clause (1) of Section 5 of the Assam Act XII of 1955. The material words occurring in that section are - - "the tenant shall not be ejected by the landlord from the tenancy" and Mr. Shome argues that this means that even in execution of a decree the landlord cannot eject the tenant except on the ground of non -payment of rent; - - but in my opinion, this construction is not correct, because the same phraseology occurs in both Clause (a) and Clause (b) of Sub -section (1) of Section 5. In Clause (b) it is stated that