The central legal point established in the judgment is the interpretation of the proviso to Sub-section (1) (a) of Section 168A, Ben. Ten. Act and the retrospective effect given to the proviso and the fact of expiry.

JUDGMENT

Roxburgh, J. - This is an appeal against a decree of the District Judge of Howrah allowing an appeal against an Order passed in proceedings under S.47, Civil P.C. by the Subordinate Judge of the First Court, Howrah, dismissing the objection of judgment-debtors 3 and 4 before him made under the provisions of S.168A, Ben. Ten. Act, to the effect that the landlord decree-holder could not proceed by attachment and sale against any property other than the tenure in arrear. The decree sought to be executed was a decree in respect of arrears of rent due on a patni tenure, passed in January 1938. The decree-holder realised in 1938 a portion of his dues by sale of the defaulting tenure, and was himself the auction purchaser. He has applied in 1941 for execution in respect of the balance of his dues by attachment and sale of other properties of the judgment-debtors, who claim that Section 168A, Ben. Ten. Act, which came into force in January 1941, is a bar to the proceedings. On behalf of the landlord appellant it is contended that as the tenure ceased to exist by merger as a result of his own purchase in the earlier execution proceedings the case falls within the terms of the proviso to Sub-section (1) (a) of Section 168A. The proviso runs as follows:

Provided that the provisions of this Clause shall not apply if, in any manner other than by surrender of the tenure or holding, the term of the tenanoy expires before an application is made for the execution of such a decree or certificate.

2. Mr. Hemendra Chandra Sen who appears on behalf of the appellant concedes that the present case is on all fours with the case in Atul Chandra Chakravarti and Others Vs. Upendra Narayan Mukhopadhyaya, AIR 1942 Cal 478 decided by a Bench to which my learned brother Blank was a party; it was there held (1) that 'merger' was one of the methods by which the term of a tenancy might expire within the meaning of the proviso, and (2) that the words "before an application is made for execution of such a decree" as used in Section 168A (1) (a) proviso refer to the first or initial application for execution and not to the subsequent proceeding which is started by the landlord after the defaulting tenure is purchased by him in execution of the same decree. Mr. Sen while conceding that the decision defeats the appeal has however pressed us to reconsider the terms of the proviso the interpretation of which is indeed a matter of some difficulty. So far as the first point decided in the case cited is concerned, a similar decision had been reached just previously in Satish Chandra Hui and Others Vs. Sudhir Krishna Ghosh and Others, AIR 1942 Cal 429 and I do not consider it necessary to refer further to it. I propose to examine the second point.

3. In the first place it is to be noted that in the case cited the word "expires" in the proviso has been interpreted as if it stood for "has expired whether before or after the commencement of the Bengal Tenancy (Amendment) Act, 1940." A retrospective effect has been given to the proviso itself and to the fact of expiry, which seems hardly justified by the word used. It is true that the section is clearly intended to apply to pending execution proceedings and has some retrospective effect, but it would not follow from this that the proviso itself included the case of an expiry, of term taking place before the commencement of the amending Act. On the other hand, the interpretation given to the phrase "before an application is made for execution of such a decree," though disposing of an apparent unfairness as regards some purchase in execution prior to the Act, may have the opposite effect in regard to purchases made after it.

4. We may consider four types of cases of purchase of a tenancy in execution of a rent decree for its own arrears of rent viz. (1) purchases made after the amending Act of 1940 where the landlord is the auction purchaser (2) similar purchases where there is a stranger auction purchaser (3) purchases ma