S. 5(1) of the Calcutta Thika Tenancy Act, 1949, as amended by the Calcutta Thika Tenancy (Amendment) Act, 1953, does not confer jurisdiction on the controller to entertain execution proceedings in respect of decrees for ejectment already passed in favor of landlords.

Judgement

GAJENDRAGADKAR, J.- This is an appeal by special leave in execution proceedings and the short point which the appellant has raised before us is that, under S. 5(1) of the Calcutta Thika Tenancy Act II of 1949 (West Bengal Act II of 1949) as amended by the Calcutta Thika Tenancy (Amendment) Act, 1953 (West Bengal Act VI of 1953), execution proceedings taken out by the decree-holder against him could be entertained only by the controller and not by the civil Courts.

This point arises in this way. The appellant is a thika tenant in respect of a portion of the premises No. 28, R. G. Kar Road in Calcutta.. In Suit No.46 of 1948 a decree for ejectment was passed against him and in favour of the respondent on March 16, 1949. This decree was challenged by the appellant by preferring an appeal before the District Court and a second appeal before the High Court at Calcutta; but both those appeals failed and the decree for ejectment passed by the trial Court was confirmed.

Then followed several proceedings between the parties and the course of litigation between them turned out to be protracted and tortuous. Ultimately on May 22, 1953, the respondent filed an execution case before the First Additional Court, Sealdah (Title Execution Case No.34 of 1953). By this application the respondent claimed that the possession of the property covered by the decree should be delivered to him.

Thereupon the appellant filed a Miscellaneous Judicial Case under S. 47 of the Code of Civil Procedure in the Court raising several objections to the decree-holder s claim for execution (Miscellaneous Judicial Case No.96 of 1953). This case was dismissed by the executing Court on February 2, 1954.

A miscellaneous appeal preferred by the appellant before the learned District Judge, 24 Parganas as well as the second miscellaneous appeal preferred by him before the High Court at Calcutta were likewise dismissed. The appellant then applied for leave to prefer an appeal under the Letters Patent.

This application was rejected by Mr. Justice Renupada Mukherjee who had heard the second appeal. On May 10, 1955, the appellant filed a petition for special leave to appeal to this Court and special leave was granted to him on May 18, 1955.

The Courts below have held that the decree-holder s application for execution of the decree passed in his favour can and ought to be entertained by the civil Courts and an order has been passed against the appellant that he should vacate the premises in question before the end of Jaistha 1362 B.S. (15th June, 1955), failing which execution will proceed according to law.

The appellant s contention is that the view taken by the Courts below about the competence of the civil courts to entertain the decree-holder s execution application proceeds on a mis-construction of S. 5 (1) of the Calcutta Thika Tenancy Act. That is how the only question which arises for our decision is about the construction of the said relevant section.

2. Before dealing with this point, it would be useful to consider briefly the history of legislation passed by the West Bengal Legislature with the object of affording protection to the thika tenants. Until 1948 the rights and liabilities of the landlords and their thika tenants were governed by the provisions of the Transfer of Property Act.

On October 26, 1948, the Calcutta Thika Tenancy Ordinance XI of 1948, was promulgated because it was thought expedient, pending the enactment of appropriate legislation to provide for the temporary stay of the execution of certain decrees and orders of ejectment of thika tenants in Calcutta.

Section 2 of the Ordinance defined the thika tenant. Section 3 provided that no decree or order for the ejectment of a thika tenant shall be executed during the continuance in operation of the Ordinance. From the operation of this section were excluded decrees or orders for ejectment passed against thika tenants on the ground of non-payment of rent unless the tenants deposited in Court t