Pratul Chandra Chanda vs Biswanath Panday

Renupada Mukherjee, J.—The point in dispute between the parties lies within a very narrow compass and that dispute relates purely to a question of law. It appears that one Sukumari Debi filed an ejectment suit against her tenant Rajdhari Pandey seeking to eject him from a homestead land measuring 1 bigha 13 cottahs. Sukumari''s interest- has now vested by purchase on Appellant Pratul Chandra Chanda. The decree was passed in 1939. The decree was put into execution by the original decree-holder on December 14, 1939. On June 10, 1940, there was an order in the execution case on the application of the judgment-debtor staying the execution of the decree u/s 3 of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act of 1940. The temporary Act was later on replaced by the West Bengal Non-Agricultural Tenancy Act of 1949 which came into effect on May 11, 1949. Thereafter, the stay order was vacated on September 6, 1950, on the ground that the temporary Act of 1940 was no longer in force. The execution case was dismissed on September 16, 1950, on the ground that no steps had been taken by the decree-holder. This order of dismissal was set aside on November 22, 1951 and the case was restored to file. On December 1, 1951, one Pratul Chandra Chanda, the Appellant in this Court, got himself substituted in place of the decree-holder on the strength of a purchase. In the meanwhile, the original judgment-debtor had died and his heirs were brought on the record in his place and a partial purchaser of the interest of the original tenant, namely, Priyanath Ghose, was also impleaded as a judgment-debtor. Thereafter, the heirs of the original judgment-debtor, who are Respondents Nos. 1 to 5 of this appeal, filed an objection u/s 47 of the CPC contending that the execution case was not maintainable in law as the original tenant had been in possession of the tenancy for long over 12 years. This contention of the judgment-debtor was upheld by the learned Munsif and an appeal being preferred by the present decree-holder, the appeal was also dismissed. So the decree-holder has preferred this second appeal.

The only point which arises for my determination in this appeal is whether by virtue of Section 88 of the "West Bengal Non-Agricultural Tenancy Act, 1949, the provisions of Sections 7 and 9 of the Act will be applicable to the incidence of this particular tenancy. It was not disputed in the courts below, nor was it disputed in this appeal, that if the provisions of Sections 7 and 9 of the Act apply to this tenancy, then the Appellant decree-holder would not have the right to execute the ejectment decree against the Respondent-judgment-debtors.

Section 88 of the West Bengal Non-Agricultural Tenancy Act, 1949, runs in the following terms:

The provisions of this Act shall have effect in respect of all suits, appeals or proceedings including proceedings in execution for ejectment of a non-agricultural tenant which are pending at the date of commencement of this Act.

Mr. Bakshi appearing on behalf of the decree-holder-Appellant cited two cases before me and contended that Section 88 of the Act would not apply to the facts of the present case. One of these cases is Jadunath Das v. Mrinal Kanti Saha (1953) 58 C.W.N. 502 and another is Panchumani Dassi v. Bhuban Mohan Mookerjee (1954) 59 C.W.N. 243. It has been held in the former case that in order that the provisions of Section 88 of the West Bengal Non-Agricultural Tenancy Act, 1949, may be applicable to any suit, appeal or proceeding referred to in that section it is necessary that the suit, appeal or execution must be actually pending at the date when the Act came into operation. This case has been cited with approval in the case of Panchumani Dassi v. Bhuban Mohan Mookerjee (supra) and it has been laid down that a tenant is entitled to protection u/s 7 of the Act only in respect of a suit for ejectment which is filed after the commencement of the Act. It has also been held in the last mentioned case that if a proceeding in execution had started for the first time after the Act of 1949 came into force, then such a proceeding does not come either u/s 7 or u/s 88 of the Act. Mr. Bakshi contended that the execution case which was started by the original decree-holder on December 14, 1939, was stayed by the court u/s 3 of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act of 1940 and so it cannot be said that that execution case actually remained pending when the permanent Act of 1949 came into force on May 11, 1949. In my judgment, this contention of Mr. Bakshi cannot be supported. In both the cases cited by him, to which reference has already been made, no execution case followed the decrees for ejectment because a direction had been given in the decrees that they would not be executed so long as the temporary Act of 1940 would remain operative. That being so, no case of any execution remaining pending arose before their Lordships who decided the above cases and no question of the operation of Section 88 of the Act of 1949 could possibly arise. The facts of the present case are, however, different. Here, the decree-holder had already put the decree into execution in 1939 and the execution case was kept stayed by an order of the court u/s 3 of the temporary Act of 1940. It cannot be said that the execution case was finally disposed of because of the passing of the stay order. The dictionary meaning of the word "pending" as given in the Law Dictionary of James A. Ballentine is "remaining "undecided". A similar meaning of the word has been given in the Oxford English Dictionary. It is thus clear that the application for execution which was originally filed by the original decree-holder on December 14, 1939, remained undecided and undisposed of. So it must be held that the application for execution remained pending within the meaning of Section 88 of the West Bengal Non-Agricultural Tenancy Act of 1949.

In this connection Mr. Basu appearing on behalf of the contesting Respondents drew my attention to the case of Bamapati Bhattacharyya v. Lakshmi Bibi ILR (1953) 2 Cal. 350. Although the facts of that case are not quite similar to the facts of the present case, still it has been held by their Lordships in that case that if an application for execution remains undisposed of, then it must be deemed to be pending within the meaning of Section 88 of the West Bengal Non-Agricultural Tenancy Act, 1949. The view which I have taken thus gets considerable support from the above case.

Last of all, Mr. Bakshi argued that the decree with which we are concerned in the present case was passed even before the temporary Act of 1940 and so it cannot be hit by the provisions of Section 88 of the West Bengal Non-Agricultural Tenancy Act of 1949. This contention cannot be accepted because Section 88 does not make any mention about any Act under which a suit or an appeal or other proceeding including a proceeding in execution which is affected by Section 88 of the Act of 1949 was decided or brought.

All the contentions advanced on behalf of the Appellant having failed, this appeal is dismissed.

In the circumstances of the case, I direct that the parties will bear their own costs.