KIRON CHANDRA GHOSE Vs. HAMID KHAN

JUDGEMENT

(1.) This is an appeal by the decree-holders who obtained a decree purported to have been made under Section 155, Ben. Ten. Act against defendants 1 and 2. The decree was to the effect that the defendants should pay to the decree-holder plaintiff Rs. 60 within a certain period and remove the structures on schedule kha of the plaint within that period. On their failure to do so, they would be liable to ejectment under the provisions of Section 155, Ben. Ten. Act. The decree-holders thereupon applied for execution of the decree in these terms that they asked for compensation awarded by the Court as well as for ejectment. One of the judgment-debtors deposited the amount of compensation into Court, The structures on the land of schedule kha had not been removed. The trial Court held that the decree-holder was entitled to execute the decree after rejecting the objections raised on behalf of -one of the judgment-debtors. That judgment-debtor preferred an appeal against the order of the Subordinate Judge.

(2.) On appeal the Subordinate Judge held that when the decree-holder asks for realization of the compensation, he cannot at the same time ask for ejectment without allowing the judgment-debtor an opportunity to perform the other part of the decree. So far, his opinion has not been controverted by the appellants. But the learned Subordinate Judge has held later on that the decree for ejectment is incapable of execution as it stands. In his view the decree- holder was bound to obtain another decree in ejectment before he can ask for ejectment of the judgment-debtors. In my view that opinion cannot be supported. The decree as made by the Court is in accordance with the terms of Section 155, Ben. Ten. Act; and under Sub- section (4) of that section it has been provided that if the defendant within the period or the extended period fixed by the Court pays the compensation mentioned in the decree and remedies the misuse or the breach to the satisfaction of the Court, the decree shall not be executed. The decree as contemplated under Section 155, Ben. Ten. Act is a decree HI the alternative. If one part of the decree is satisfied, the other part, that is to say, the part directing ejectment cannot be enforced. But if the part of the decree which awards compensation to the plaintiff and directs the defendant to remove the mischief is not complied with, then without obtaining a further decree the plaintiff is entitled to execute that part of the decree which directs ejectment. In this case, however, the plaintiff's petition was wrong in form because he asks for realization of the compensation as well as for ejectment.

(3.) The proper course for him to take was to ask for ejectment on the allegation that the defendant had not paid compensation within the time limit nor had he remedied the misuse. But that does not affect the question in the present ase as regards the rights of the decree- holders. The judgment of the Subordinate Judge and the order holding that the decree as regards ejectment is incapable of execution, must, therefore, be set aside and it should be directed that the decree-holder would be entitled to execute his decree in ejectment, unless the defendant remedies the misuse within the period fixed by the Court. It is unnecessary to make any order as regards compensation, because it has been already deposited, although it seems beyond the period mentioned in the decree. We, therefore, make this order in lieu of the order of the Subordinate Judge that the decree-holder be allowed to execute his decree in ejectment but ejectment will not be directed if the judgment-debtor remedies the misuse within a period of three months from this date. As the original application was not in accordance with law, there will be no order as to costs in any of the Courts. Bose, J.