Judgment

CHANDRACHUD, J.:- In this appeal by special leave from the judgment of a learned Single Judge of the High Court of Calcutta, two questions are raised for our consideration on behalf of the appellants who have obtained against the respondent a decree for eviction (1) whether the decree of the trial Court has merged in the decree of the High Court and (2) whether by reason of Section 17-D of the West Bengal Premises Tenancy Act, 1956 the decree for eviction is incapable of execution.

2. Long, long back on May 19, 1953 Messrs. Hind Estate Private Ltd., the predecessors-in-title of the appellants, filed against the respondent a suit for eviction on the ground of non-payment of rent. On November 24, 1958 the learned Second Munsif at Alipore, passed a decree for possession in favour of the plaintiffs holding that by reason of defaults in the payment of rent, the respondent was not entitled to the protection of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. That decree was confirmed in appeal by the learned Subordinate Judge, 4th Court, Alipore, on April 12, 1967. During the pendency of the appeal, the appellant had purchased the right, title and interest of the plaintiffs in the suit premises and they had also obtained an assignment of the decretal rights in their favour. They were therefore brought on the record of the appeal in place of the original plaintiffs. The respondent filed Second Appeal No. 1255 of 1967 against the decree of the 1st Appellate Court and that appeal, after a contested hearing, was dismissed by a Division Bench of the High Court of Calcutta on January 8, 1969. While dismissing the appeal, the High Court granted to the respondent time to vacate the suit premises till the end of January, 1970, on the respondent giving a written untertaking to the Court that he will hand over quiet and peaceful possession of the premises to the appellants on the expiry of the aforesaid period.

3. The West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 was repealed by Section 40 of the West Bengal Premises Tenancy Act, XII of 1956. During the Proclamation of Emergency issued by the President of India on February 20, 1968, Act XII of 1956 was amended by the West Bengal Premises Tenancy (Amendment) Act, President s Act 4 of 1968, which was given retrospective effect from August 26, 1967. After the cessation of the emergency, the West Bengal legislature passed the West Bengal Premises Tenancy (Amendment) Act, 1969 with a view to re-enacting with modification President s Act 4 of 1968.

4. In between the decree of possession passed by the High Court in the appellants favour on January 8, 1969 and the expiry of the period allowed to the respondent to vacate the premises, several amendments were made to the West Bengal Premises Tenancy Act, XII of 1956 ("The Act of 1956") by the West Bengal premises Tenancy (Second Amendment) Act, 1969 ("The Act of 1969") which came into force on November 14, 1969. We are concerned in this appeal with the provisions of Section 17-D which was introduced in the Act of 1956 by the Act of 1969. That section, in so far as material, reads thus :

"17-D. Power of Court to set aside decreed passed on account of default in the payment of rent.

(1) Where before the commencement of the West Bengal Premises Tenancy (Amendment) Act, 1968, a decree for the recovery of possession of any premises was passed -

(a) X X X X X X

(b) in a suit under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, by reason only of clause (i) of the proviso to sub-section (1) of Section 12 of that Act, but the possession of such premises had not been recovered from the tenant by the execution of the decree, the tenant may within a period of sixty days from the date of commencement of the West Bengal Premises Tenancy (Second Amendment) Act, 1969, make an application to the Court which passed the decree to set aside the decree.

Explanation - Where the decree was passed in the