Dhirendra Nath Mukherjee and Others vs Mohendra Prosad

S.R. Das Gupta, J.—This matter, in our opinion, should be sent back to the trial Court for decision of the question which I shall presently, indicate. The appeal is against an order, of the learned Subordinate Judge, Second Additional Court, Alipore. The appellants are the decree-holders and the suit in respect of which this appeal arises was a suit for ejectment and for arrears of rent and mesne profits. The said suit was decreed on the 5th March. 1948, and on the 1st September, 1048, an execution proceeding was started. In October, 1048, the Thika Tenancy Ordinance of 1948, came into existence. Because of the provisions of sec. 3 of the said Ordinance the execution case was stayed. On the 28th February, 1949. the Calcutta Thika Tenancy Act of 1949, came into force and thereafter on the 17th September, 1949, an application was made by the decree-holders for proceeding with the execution case on the ground that the new Act permitted them to do so. That application was granted Certain proceedings were thereafter taken to which it is not necessary for the present purpose to refer. Ultimately the judgment-debtor, when the said execution case was again proceeded with, filed objection under Order 21. rule 2, and u/s 47 of the Code of Civil Procedure. The said objections were (a) that there had been adjustment of the said decree and (b) that the judgment-debtor was a Thika tenant and therefore he was entitled to the benefits of the provisions of the Act of 1949. The trial Court dismissed both the objections and against that order there was an appeal. During the pendency of the said appeal the Thika Tenancy Ordinance of 1052, came into force. The lower appellate Court came to the conclusion that the finding of the trial Court on the question as to whether or not there was an adjustment of the decree should stand but it held that because the Thika Tenancy Ordinance of 1952 had in the meantime come into force the matter has to be sent back to the lower Court. The precise order of the lower appellate Court was as follows : "If in view of the learned lower Court the judgment-debtor came within the definition of Thika tenant as promulgated by the Ordinance he will next have to decide how far the retrospective operation has been given to this definition in order to bring this case within the scope of section 28 of the Calcutta Thika Tenancy Act, 1949". I should have mentioned that the Order (Ordinance?) of 1952, gave a wider definition of thika tenant than what was to be found in old Act of 1949, and the question was whether or not the judgment-debtor came within the expanded definition as given in the said Order (Ordinance?). Under the provisions of section 28 of the old Act the Court which passed the decree could vary or rescind the same if it was of opinion that the decree or order was not in conformity with any of the provisions of the Act of 1949. It appears from the order of the lower appellate Court, to which I have just now referred, that the lower appellate Court was troubled with the question as to whether or not section 28 would still be applicable after the promulgation of the Order (Ordinance?) of the 21st October, 1952, and he referred the two questions for the decision of the lower Court, namely, the question as to whether or not the judgment-debtor, was a thika tenant within the definition of Thika tenant as given in the said Order (Ordinance?), secondly, whether or not section 28 of the Thika Tenancy Act of 1949,- would be applicable. It should be noted at this stage that the Order (Ordinance?) of 1952, did not affect section 28 of the Act of 1949. The only effect of that Order (Ordinance?) was to make the definition of Thika tenant more wide. So the question as to the application of section 28 did not arise in the said appeal but the said order having been made and there no appeal having been filed against that order that order must stand. After the said order was made the matter went back to the lower Court and the lower Court came to the conclusion that the defendant was a Thika tenant and that section 28 of the Act would apply and on that view of the matter passed an order varying the old decree, on the terms mentioned in that order. The substance of those terms is that the judgment-debtor shall not be evicted from the tenancy in question but would be liable to pay the arrears of rent from the 1st of Magh. 1352 B.S., till Pous, 1353 B.S., at a certain rate and taxes for four quarters at certain rates mentioned in that order.

There was again an appeal against the said order and the lower appellate Court dismissed the appeal. It is against that decision that the present appeal has been filed before us.

The lower appellate Court in deciding the said appeal came to the conclusion that section 28 of the Thika Tenancy Act was applicable to the present case, and that the variation of the decree as made by the lower Court should be upheld.

In our opinion the matter has been approached by both the Courts from an entirely mistaken point of view. The view taken by the lower appellate. Court was that the only question to be gone into was whether or not after the promulgation of the Thika Tenancy Order (Ordinance?) of 1952, section 28 of the Calcutta Thika Tenancy Act, 1949, still remained in force and the lower appellate Court proceeded on the view that if the said section was still in force then there must be a variation of the decree and on that view held that the order made by the lower Court should be upheld. Neither the lower appellate Court nor the trial Court took into consideration the actual provisions of section 28 of the Act I shall deal with this aspect of the matter a little later. Before that I shall dispose of a question which has been raised in this appeal by the appellants before us. The appellants contended that after the promulgation of the Order (Ordinance?), passed on the 21st October, 1952, the Thika Tenancy Act of 1953 had come into force and on the date when the appeal was decided that Act was in force. In this new Act, sections 28 and 29 of the Calcutta Thika Tenancy Act, 1949, have been, deleted The result, the learned Advocate of the appellants contends before us relying on the case of Jogiai Chamria v. Atul Krishna Lahe, (1) (57 C.W.N. 566), is that as regards pending proceedings it shall be deemed, that the Calcutta Thika Tenancy Act, 1949, never had sections 28 and 29. If that be the position, then the learned Advocate contended, section 28 has no application and the order passed by the lower court varying the decree was wrong and the decision of the lower appellate court, upholding that order is also wrong. In our opinion, this contention of the learned Advocate for the appellants must fail on a short ground. It appears from the facts to which I have already referred that at the time when the trial court, after the case was sent back, decided the matter, the Act of 1953 had not come into existence. It came. into existence afterwards. So on the 18th February, 1953, being the date on which the said court made the second order, namely, that the defendant was a thika tenant and sec. 28 of the Act applied to the present case the only provisions which were in force were the Calcutta Tenancy Act, 1949, as amended by the Thika Tenancy Ordinance dated the 21st October, 1952, and as I have already said the Ordinance of the 21st October, 1952, left section 28 of the Calcutta Thika Tenancy Act, 1949, untouched. It must, therefore, be held that the order passed by the lower court was correct and was made according to law as it then stood. That being so the order of the lower court cannot be challenged in appeal on the ground that since the passing of that order another Act had come into existance which took away the right which had been conferred by section 28 of the old Act. Under the order of the lower court relief had been given on the basis of section 28 and the lower court was entitled to give such relief. A question has been raised, namely, that if that be the correct position in law, the lower appellate court when it first remanded the matter to the trial court for decision of the questions, to which I have referred, should not have passed such an order. The answer to that question is that an appeal ought to have been filed against the said order of the lower appellate court and as no appeal has been preferred against the said order the same must be held to be binding. We have come to the conclusion that this contention raised by the appellants must fail.

But the matter is by no means concluded by our aforesaid decision. As I have just indicated the whole approach to this matter, right from the beginning, has been erroneous The view taken by the learned Additional District Judge and the Munsif, on which they proceeded, was that if section 28 of that Act, 1949, even after the promulgation of the Thika Tenancy Order (Ordinance?) of 1952, remained in force then the decree must be varied and the order of the lower court varying the previous decree must be held to be good. Both the courts overlooked the provisions of section 28. Section 28 lays down that where "any decree or order for the recovery of possession of any holding from a thika tenant has been made before the date of commencement of this Act but the possession of such holding has not been recovered from the thika tenant by the execution of such decree or order, the court by which the decree or order was made may, if it is of opinion that the decree or order is not in conformity with any provision of this Act other than sub-section (1) of section 5 or section 27, rescind or vary the decree or order in such manner as the Court may think fit for the purpose of giving effect to such provision and a decree or order so varied by any court shall be transferred by such court to the Controller for execution under this Act as if it were an order made under and in accordance with the provisions of this Act."

The principal point to be noted is that an order u/s 28 can be made if the Court by which the decree or order was made is of the opinion that the decree or order was not in conformity with any provision of this Act, other than sub-section (1) of section 5 or section 27: in other words, it has to be established before an order u/s 28 can be made that the decree or order which has been passed is not in conformity with any of the provisions of this Act other than sub-section (1) of section 5 or section 27. The matter has not all been considered from this point of view.

The next important point to be taken note of is that when the court varies the original decree it must do it in a manner as it thinks fit "for the purpose of giving effect to such provisions", that is to say, for the purpose of giving effect to the provision which has been violated Therefore, before an order u/s 28, can be made, it has to be established that the decree or order sought to be varied or rescinded was not in conformity with any provision of this Act as mentioned and the decree or order which has been made under the said section has to be made in such a way as it would give effect to the purpose of the provision which has been violated. The matter, as I have already said, was not at all considered from this point of view.

In the circumstances it is impossible for any Court to decide whether or not the order which has been passed u/s 28 of the Act was an order passed in accordance with the provisions of the said section. It is not known what was the provision which has been violated and, therefore, it is impossible to hold whether or not the order which has been passed varying the decree was passed in a manner which gave effect to the said provision.

There is one other small matter to which reference need be made. The learned Advocate for the appellants contended before us that u/s 28 of the Thika Tenancy Act, 1949, the Court which is to make an order under the said section is the Court which passed the decree but in this case, he contended, the order was passed by the executing Court and not by the Court which passed the decree. The lower appellate Court did not accept this contention and it seems to us that there is very little substance in it. It is the same Court which passed the decree which gave relief u/s 28 of the said Act. The learned Advocate contended that the petition which was made in this case was made intituled in the execution proceedings. But that in our opinion is a mere irregularity and does not materially affect the merits of the questions between the parties. Besides, the learned lower appellate Court has pointed out in its judgment when it sent the matter back on remand that the parties before it agreed to go back to the lower Court and canvass the points raised by the order of Sri Niyogi being the learned Munsif, who passed the decree and it is that Mr. Niyogi, who also passed the order u/s 28 of the Act In the circumstances we hold that this contention of the appellants must also fail In the circumstances, we hold that the appeal is allowed and the matter must go back to the trial Court for decision of this question. We, however, make it clear that we hold that the judgment-debtor is a thika tenant and section 28 of the Act, if the provisions of the said section are otherwise complied with, would apply to this case. On this basis the matter is sent back to the trial Court to be decided in accordance with the observations made in this judgment.

Costs of this appeal will abide by the result of the final decision of this matter--the hearing fee being assessed at two gold mohurs. The execution cases and the miscellaneous cases pending before the lower Court and which have been stayed will remain stayed until the final decision of this matter. Mallick, J.

I agree.