The amended provisions of the Calcutta Thika Tenancy Act, 1949, including the omission of Section 28, apply to pending proceedings under Section 28, but this does not mean that the proceedings under Section 28 become incompetent.

( 1 ) THIS revisional application is directed against an order of Munsif, 2nd Court, Alipore, rejecting an application under Section 28 of the Thika Tenancy Act, 1949.

( 2 ) THE opposite parties Satya Dhan Ghosal and others as plaintiffs instituted Title Suit No. 40 of 1947 against the petitioners Deorajin Debi and another for their ejectment from some Bustee land at No, 49/5, Circular Garden Beach Road. There was also a claim for arrears of rent and mesne profits, in the plaint which was filed on February 8, 1947, the petitioners were described as monthly Bharatia tenants. The defendant petitioners filed a written statement on May 22, 1947, and the suit was still pending on October 26, 1948, when the Calcutta Thika Tenancy Ordinance, 1948, came into force.

( 3 ) THE defendant petitioners did not ultimately contest the suit which was decreed ex parte on February 10, 1949. But though the suit was decreed ex parte and no issue was raised as to the nature of the tenancy, the learned Munsif made an observation that the defendants were thika tenants and that the decree would be subject to the provisions of the Thaka Tenancy Ordinance. It may be mentioned here that the Thika Tenancy Ordinance, 1948, did not stay any pending suit but stayed the execution of decrees and orders for ejectment of thika tenants, provided that within 30 days from the date of the decree or order the tenant deposited into court the arrears of rent decreed together with costs.

( 4 ) THE Calcutta Thika Tenancy Act, 1949, came into force on February 28, 1949, and Section 28 thereof provided for rescinding or varying of decrees or orders passed for ejectment of thika tenants in certain circumstances.

( 5 ) THE defendant petitioners deposited on March 9, 1949, the amount of rent and costs decreed by the Munsif ex parte on February 10, 1949, and at the same time filed an application under Section 28 of the Calcutta Thika Tenancy Act for rescinding the decree for ejectment. This application was contested by the plaintiff opposite-parties on the allegation that the petitioners were not in fact thika tenants within the meaning of the Thika Tenancy Act, 1949, and that the observation made to that effect in the ex parte decree passed on February 10, 1949, was uncalled for and not binding on them and that they were entitled to agitate the matter on proper materials.

( 6 ) THE learned Munsif, then in charge of the court, held that the observation as to the nature of the tenancy made in passing the ex parte decree on February 10, 1949, was uncalled for and was not binding on the parties. The learned Munsif allowed the parties to adduce evidence as to the nature of the tenancy and held that the petitioners were not thika tenants within the meaning of the Act and so dismissed the application by his order dated November 12, 1951. Against that order this revisional application has been filed.

( 7 ) THE ground taken in the application was that the learned Munsif had acted illegally and with material irregularity in allowing fresh evidence to be adduced concerning the nature of the tenancy in the face of the observations made in the ex parte decree.

( 8 ) THE Calcutta Thika Tenancy Act, 1949, has now been amended by the Calcutta Thika Tenancy Amendment Act, 1953, which has substituted a new definition for the term 'thika tenant' and which has inter alia omitted Section 28 from the Act. The questions that now arise are firstly whether in view of the omission of Section 28 from the Act, the present revisional application which is a continuation of the petitioners' application under Section 28 of the Calcutta Thika Tenancy Act, 1949, is now competent; and secondly, whether the petitioners can get relief in view of the amended definition of the term 'thika tenant' introduced by the Amendment Act of 1953.

( 9 ) ON the first point, there is a decision of Chunder, J. in the case of -- 'jogiai Chamarin v. Atul Krishna'. Chunder, J. held that the result of the amendment