Back
1957 Supreme(Cal) 196
HIGH COURT OF CALCUTTA
S. N. Guha Ray, Renupada Mukherjee
TARA PADA BISWAS - Appellant
Versus
MRITUNJOY MUKHERJEE - Respondent
A. F. A. O. 138 Of 1954
Decided On : NOVEMBER 19, 1957
AMARENDRA NATH GUPTA, ATUL CHANDRA GUPTA, BENOY BEHARI SEN, Jitendra Kumar Sen Gupta
Section 88 of the West Bengal Non-Agricultural Tenancy Act, 1949, does not apply to cases where there is no proceeding pending at the date of the commencement of the Act, and even if it does apply, it does not make available to the judgment-debtor the provisions of Sections 7 and 9 of the Act in execution proceedings to reopen a decree that was passed before the commencement of the Act.
Headnote:
NON-AGRICULTURAL TENANCY - Stay of execution - Section 88 of the West Bengal Non-Agricultural Tenancy Act, 1949 - Applicability - Interpretation - Effect on pending proceedings - Scope of provisions - Reopening of decree - Availability of relief to judgment-debtor.
Fact of the Case:
A suit for ejectment was filed against the appellant, a non-agricultural tenant, after the commencement of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940. A decree was passed against the appellant on 2nd January, 1941, and an application for stay of execution was granted on 21st January, 1941. The appellant filed an appeal against the decree, which was dismissed on 13th March, 1942. The West Bengal Non-Agricultural Tenancy Act, 1949, came into force on 15th May, 1949. The appellant filed an objection under Section 47 of the Code of Civil Procedure, claiming that the execution could not proceed in view of Section 88 of the Act of 1949. The Trial Judge upheld the objection, but the appellate Judge disallowed it.
Finding of the Court:
The Court held that Section 88 of the Act of 1949 did not apply to the facts of the case, as there was no proceeding pending at the date of the commencement of the Act. The Court further held that even if Section 88 were applicable, it would not make available to the appellant the provisions of Sections 7 and 9 of the Act, as those provisions could not be applied in execution proceedings to reopen a decree that was passed before the commencement of the Act.
Issues: 1. Whether Section 88 of the West Bengal Non-Agricultural Tenancy Act, 1949, applied to the facts of the case. 2. Whether Section 88 of the Act of 1949 made available to the appellant the provisions of Sections 7 and 9 of the Act.
Ratio Decidendi: 1. The Court held that Section 88 of the Act of 1949 did not apply to the facts of the case, as there was no proceeding pending at the date of the commencement of the Act. The Court reasoned that the suit had ended in a decree, and there was no other proceeding initiated by the decree-holder or the judgment-debtor. Therefore, there was nothing pending before the Court when the new Act of 1949 came into force. 2. The Court held that even if Section 88 were applicable, it would not make available to the appellant the provisions of Sections 7 and 9 of the Act, as those provisions could not be applied in execution proceedings to reopen a decree that was passed before the commencement of the Act. The Court reasoned that the substantive rights of the parties were fully investigated in the suit and appeal, and the executing Court had no option but to enforce the decree unless it was a nullity or there was a bar to its execution.
Final Decision: The Court dismissed the appeal, holding that Section 88 of the Act of 1949 did not apply to the facts of the case and that even if it did, it would not make available to the appellant the provisions of Sections 7 and 9 of the Act.
( 1 ) THIS is a second appeal by Tarapada Biswas, the defendant in a suit for ejectment, from an appellate order disallowing his objection under Section 47 of the Code of Civil Procedure.
( 2 ) THE facts which are not in dispute are briefly as follows. A suit for ejectment was filed against the present appellant, on the 8th June, 1940, after the commencement of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940. That Act came into force on the 30th May, 1940. There was a decree by the Trial Court on the 2nd January, 1941. The tenant defendant applied for stay of the execution of the decree for ejectment on the 15th January, 1941, under Section 3 of the temporary Act. Although as yet no application was made for executing the decree a stay was ordered on the 21st January, 1941. The present appellant filed an appeal from the decree and that was dismissed on the 13th March, 1942. The decree-holder filed an application for executing the decree for costs on the 29th July, 1942. That execution was dismissed on full satisfaction on the 3rd April, 1943. On the 15th May, 1949, the West Bengal Non-Agricultural Tenancy Act, 1949, came into force. There was then an application on behalf of the decree-holder for vacating the stay order, and the stay order was vacated on the 3rd April, 1952. On the 3rd May, 1952, the execution case out of which this appeal arises was filed. On the 6th September, 1952, the judgment-debtor filed an objection under Section 47 of the Code of Civil Procedure saying that the execution could not proceed in view of Section 88 of the Act of 1949. The Trial Judge upheld that objection, but the appellate Judge on appeal by the decree-holder disallowed it. It is from that appellate order that the appellant now appeals.
( 3 ) THE question for decision in this appeal is whether Section 88 of the Act of 1949 on a proper construction applies to the present case. A subsidiary but nonetheless Important question which arises is whether Section 88 on a proper construction makes available to the judgment-debtor in execution proceedings all the provisions of the Act of 1949 like Ss. 7 and 9.
( 4 ) I must confess at the very outset that Section 88 of the Act of 1949 is a somewhat difficult section to construe, and it has already been the subject matter of
a number of decisions. Before dealing with the decisions, the terms of the section have to be examined. Section 88 runs as follows:"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 the commencement of this Act. "
( 5 ) DR. Gupta on behalf of the appellant argues, in the first place, that although no execution had been started at the date when the stay order was passed it must nevertheless be held that there was some proceeding before the Court which it stayed under Section 3 of the temporary Act of 1940. He next argues that if that was so the provisions of Section 88 apply to the facts of the present case. If Section 88 applies, Dr. Gupta further argues, that on a proper construction, it means that Section 7 or Section 9, as the case may be, will apply even in execution proceedings. The reason for this argument of Dr. Gupta is this: Unless such a broad construction is placed upon Section 88 a class of tenants who are not lucky enough to obtain a stay order while the suit or appeal against them was still pending when the Act of 1949 came into force, but who were unlucky enough to have the suit or the appeal disposed of before the commencement of the Act of 1949 would practically have no relief at all. It is undoubtedly true that even if Section 88 applies to a case where there was a decree before the commencement of the 1949 Act, the tenant can have relief only if the provisions like Section 7 or Section 9 of the Act of 1949 can be applied in the course of the execution or other proceedings and
