Mono Mohon Das Gupta vs Sm. Umarani Sanyal

Roxburgh, J.—This is a Rule against an order of a Judge of the Calcutta Ct. of Small Causes refusing to entertain an appln. made by an occupant of a premises against whom an order under Ch. VII, Presidency Small Cause Courts Act had been made by consent. The order in question was made on 16-3-1949, & the date for delivery of possession was fixed as 20-9-1949. The record shows that according to the procedure of the Ct. for the carrying out of the order the appct. in the proceedings under Ch. VII filed a writ of possession on 13-9-1949. The rules regarding the procedure are 109 & 110 in Vol. 2 of the Manual of the Court of Small Causes. The form of the rule is prescribed at p. 238 of the same volume. On 14-9-1949, that is on the following day, the deft, made an appln. purporting to be u/s 47, C.P.C. for permanent stay of the order. By consent, the actual date of delivery of possession was put off from time to time pending the disposal of the appln. finally, on 30th November, the learned Judge passed the order which is the subject-matter of the present Rule in which he has held that there being no execution in process the judgment-debtor cannot maintain the present appln. u/s 47, C.P.C. The learned Judge''s view is coloured by the persistent error of the Judges of the Ct. of Small Causes by treating proceedings under Ch. VII of the Act as though they were regular suits in ejectment. Nothing can be clearer than they are not. They are proceedings sui generis & partake to my mind of a mixture of suit & execution procedure rolled into one. In any case the rules of the Ct. show that once an order u/s 43 has been passed by the Ct. the procedure is for appln. by the possessor of the order by filing a writ of possession & the necessary court-fees whereupon the writ will duly pass to the bailiff for carrying out on the date fixed. u/s 48 of the Act, in proceedings under Ch. VII the provisions of the C. P. C. so far as may be are to apply. It seems difficult to appreciate how the learned Judge can hold that if the order u/s 43 is treated as a decree, (which appears to be his view) the further proceedings for the carrying out of the order are not of the nature of execution. As far as I can understand, the learned Judge''s view is that until the occupant of the premises has been removed there has been no execution at all. The learned Judge''s order leads to considerable doubt as to whether he has at all understood the procedure of the Ct. I have not the slightest doubt that, the occupant is entitled to a decision of the Ct. on a contention that the order for possession has by agreement in some way been satisfied or otherwise disposed of & that the order of the learned Judge saying that the present appln. is premature is quite unsustainable.

The Rule is accordingly made absolute with costs. The matter is sent back to the learned Judge, as quickly as may be, to dispose of the appln. of the occupant, the present petr before me.