Dhirendra Nath Ganguli vs Raghubir Singh

Renupada Mukherjee, J.—This appeal raises a pure question of law, namely, whether a decree which has been obtained before the passing of the Calcutta Thika Tenancy Act, 1949, execution whereof was pending at the time of passing of the Calcutta Thika Tenancy (Amendment) Act of 1953, is liable to be rescinded or varied u/s 28 of the original Act of 1949 at the instance of a thika tenant.

In order to understand how the above question of law has arisen, it will be necessary to state the following facts.

The Respondents held some lands under the Appellants as thika tenants. The latter got a decree for ejectment against the Respondents on January 17, 1949, that is, prior to February 28, 1949, when the Calcutta Thika Tenancy Act, 1949, came into force. Execution was started by the decree-holders on September 19, 1949. Various orders were passed from time to time and, for the purpose of this appeal, I may take it that an execution case was pending on October 21, 1952, when the Calcutta Thika Tenancy Ordinance, 1952, came into operation and the execution case was also pending on March 14, 1953, when the Calcutta Thika Tenancy (Amendment) Act of 1953 came into force. During the continuance of the Ordinance of 1952, the tenants filed an application u/s 5(2) of the Ordinance, apparently with the object of setting aside the decree so that the case might be remitted to the Controller for dealing according to law. This application was finally disposed of and dismissed on April 29, 1953, that is, after the Amending Act of 1953 had come into force.

After the dismissal of the above application, execution of the decree proceeded but the judgment-debtors again raised an objection tinder Section 47 of the CPC read with the Calcutta Thika Tenancy Act of 1949, as amended by the Act of 1953, contending that the decree not being in conformity with the Act is not executable. This objection was disallowed by the learned Munsif. He held that the objection of the judgment-debtors was barred by res judicata and was not maintainable under the provisions of the Calcutta Thika Tenancy Act, 1949, as amended by the Act of 1953. An appeal was preferred by the judgment-debtors and the lower appellate court reversed both the findings of the executing court and held that the application for execution was not maintainable. In that view of the matter, the lower appellate court directed that the execution case should be struck off. This appeal has been preferred by the decree-holders challenging the legality and propriety of the order passed by the lower appellate court.

One of the questions canvassed in the lower appellate court and also in this Court was whether the execution case in which this objection was taken by the judgment-debtors was a pending proceeding within the meaning of Sub-section (2) of Section 1 of the Calcutta Thika Tenancy (Amendment) Act of 1953. That Sub-section runs as follows:

(2) It shall come into force immediately on the Calcutta Thika Tenancy (Amendment) Ordinance, 1952 (West. Ben. Order. XV of 1952), ceasing to operate:

Provided that the provisions of the Calcutta Thika Tenancy Act, 1949, as amended by this Act, shall, subject to the provisions of Section 9, also apply and be deemed to have always applied to all suits, appeals and proceedings pending

(a) before any Court, or

(b) before the Controller, or

(c) before a person deciding an appeal u/s 27 of the said Act, on the date of the commencement of the Calcutta Thika Tenancy (Amendment) Ordinance, 1952.

The decree out of which the execution case in question arose was passed prior to the original Calcutta Thika Tenancy Act of 1949. The execution case which followed the decree was started after the passing of the Act of 1949 and it continued till the passing of the Amending Act of 1953. Certainly the execution proceeding must be taken to be a pending proceeding within the meaning of Section 1(2) of the Amending Act of 1953. This finding of the lower appellate court is correct. But that will not solve the real difficulty with which the Tenants-Respondents are confronted. The real question is whether the tenants would be entitled to the relief which they are seeking for, merely by virtue of the fact that the execution case was pending at the time when the Amending Act of 1953 came into operation. My answer to this question must be in the negative and that for the following reasons:

Section 1(2) of the amending Act of 1953 lays down that the provisions of the Calcutta Thika Tenancy Act of 1949 would apply and be deemed to have always applied in the suits, appeals and pending proceedings, not as those provisions originally were but as amended by the Act of 1953. One such important amendment is the omission of Section 28 of the original Act of 1949 from the statute. That was the only section under which a decree passed prior to the Act of 1949 could be rescinded or varied if it was not in conformity with the provisions of the Act of 1949. The withdrawal of the above section clearly takes away the right of the tenant to have those decrees varied or reversed, which have been passed prior to the Act of 1949.

If the original Act of 1949, the amending Ordinance of 1952 and the amending Act of 1953 be read side by side and compared with one other, then there will remain little room for doubt that decrees passed prior to the amending Act of 1953 cannot be now touched except within the limited scope provided for in Section 9 of the amending Act of 1953. u/s 28 of the Act of 1949, decrees passed prior to the Act could be rescinded or varied under certain circumstances if the decree-holder had not recovered possession from the thika tenant in the meantime by the execution of the decree. Section 5(2) of the Ordinance of 1952 gave the court power to set aside decrees passed only within a limited period, namely, between the time of commencement of the Act of 1949 and of the Ordinance of 1952. Sub-section (4) or Section 5 of the above Ordinance lays down that the provisions of Section 5 of the Ordinance shall have effect, notwithstanding anything contrary in any other law or elsewhere in the said Act (Act of 1949) as amended by the Ordinance. So, Section 5(2) of the Ordinance read with Sub-section (4) makes it clear that the scope of interference by Courts in the matter of reopening previous decrees was made more restricted than what it was under the original Act of 1949. The amending Act of 1953 completely withdrew the right of the tenant to get prior decrees rescinded or varied by omitting Section 28 of the Act of 1949 and giving a thika tenant only a limited right u/s 9 of the amending Act to prosecute proceedings already commenced u/s 5(2) of the Ordinance of 1952. If it is worth anything to cite a case decided by myself, I may say that I have taken this view in a case, Kanai Lal Sur v. Paramnidhi Sadhu Khan (1955) 60 C.W.N. 397.

Mr. Bose appearing on behalf of the Tenants-Respondents drew my attention to a case, Deorajin Debi v. Satyadhan Ghosal (1953) 58 C.W.N. 64 and contended that the tenants are entitled to the protection of the Act of 1949 because the execution proceedings were pending at the material time, namely, when the amending Act of 1953 was passed. In the case cited above, P.N. Mookerjee and Sen JJ. have held that the proceedings started u/s 28 of the Act of 1949 prior to the passing of the amending Act of 1963 remained competent even after the omission of Section 28 from the statute by the amending Act of 1953. On the strength of this decision, Mr. Bose contended that it is open to a thika tenant to claim the benefit of Section 28 in spite of the omission of that section from the statue by the amending Act of 1953. I am afraid I cannot accept this contention of Mr. Bose. The case cited above has been dissented from in a later case decided by S.R. Das Gupta and Mullick JJ., Mahadeb Lal Kanodia v. The Administrator-General, West Bengal (1955) 59 C.W.N. 384. There being two practically conflicting Division Bench decisions, I would have referred this matter to a Division Bench for a reference to the Full Bench, if I were not of opinion that the facts of the present case are distinguishable from the facts of the case, Deorajin Debi v. Satyadhan Ghosal (supra). In that case, the pending proceeding itself was one u/s 28 of the Act of 1949 and the question before their Lordships was whether that proceeding became null and void by the subsequent withdrawal of Section 28 of the Act of 1949 from the statute and their lordships said that, as no clear intention appeared in the terms of Section 1(2) of the amending Act of 1953 to exclude the operation of Section 8 of the Bengal General Clauses Act, a right which has already-accrued to the tenant should not lapse. So, the scope of that decision was whether a proceeding u/s 28 commenced under the Act of 1949 could be continued after the amending Act of 1953 came into force. In the present case, no question of continuation of such a proceeding arises. Here the tenants want to commence a new proceeding u/s 28 of the Original Act of 1949 after the passing of the amending Act of 1953. In my opinion, they cannot be permitted to do this because Section 28 of the Act of 1949 has definitely been omitted by the amending Act of 1953. That being the case, the objection which was advanced by the Respondents against the execution of the decree must fail and the order passed by the lower appellate court must be reversed.

For reasons given above, I allow this appeal and set aside the order of the lower appellate court and restore the order of the Munsif. The execution case will now proceed according to law.

In the circumstances of the case, I do not make any order as to costs in this Court.

Leave to appeal under Clause 15 of the Letters Patent is asked for and refused.