JUDGMENT

S.N. Dwivedi, J. - The petitioner is the tenant-in-chief of a plot of Land situate in the city of Jaunpur; the respondents 4 to 8 were his sub-tenants. He instituted a suit under Sec. 175, U.P. Tenancy Act for their ejectment. The suit was decreed on July 2, 1953. Thereafter he applied for the execution of the decree for ejectment. At first it was stayed by the execution court in view of certain orders of the U.P. Government. Subsequently, on July 1, 1965, the U.P. Urban Areas Zamindari Abolition and Land Reforms Act was enforced in the city of Jaunpur. And then the petitioner's application for execution was stayed under rule 38 (viii) of the U.P. Urban Areas Zamindari Abolition and Land Reforms Rules. But on June 30, 1966, the execution court held that as the respondents had acquired the rights of a sirdar under the aforesaid Act, they were immune from ejectment. On that view he dropped the proceedings for execution. The petitioner filed an appeal. It was dismissed. His revision was also dismissed by the Board of Revenue. Hence this petition. He prays that the court may quash the orders of the Board of Revenue and the Tahsildar.

2. Sec. 10 of the Act provides for consequences of the vesting of the zamindari in the State. Clause (i) of Sec. 10 says that all suits and proceedings of the nature to be prescribed pending in any court on the date of vesting and all proceeding upon any decree or order passed in any such suit or proceeding previous to the date of vesting, shall be stayed. Rule 38 provides for the stay of proceedings of various kinds. Clause (iv) provides that suits, applications or proceedings, including appeals, references and revisions relating to or pending under, inter alia, Sec. 175 of the U.P. Tenancy Act shall be stayed. Clause (viii) of rule 38 provides that all proceedings "upon any decree or order, unless it is a decree or order which became final before the date of vesting, but is not a decree which may be executed by ejectment of the judgment-debtor, passed previous to the date of vesting, in any suit or proceedings of the nature specified in clause (iv) shall remain stayed." Rule 39(1), as it stood on the date the Tahsildar made his order, provided that every suit or proceeding, whether pending in the court of the first instance or in appeal or in revision, stayed under clauses (i), (ii), (iii), (v) and (viii) of rule 38, shall, together with appeal or revision, if any, be abated by the court or authority before whom, it may be pending, after notice to parties and giving them an opportunity of being heard. Other clauses of rule 39 are associated with the other clauses of rule 38 except its clause (viii). Rule 39, looked at as a whole, provided either for abatement of certain proceedings or their continuance. As clause (viii) of rule 38 was not mentioned in any part of rule 39 on the date of the passing of the order of the Tahsildar, the Tahsildar could not dispose of the proceeding for execution initiated by the petitioner. He should have kept it stayed. Rule 39 (1) was amended on December 21, 1966. The amendment added clause (viii) of rule 38 in Sub-rule (1) of rule 39. In the result, after December 21, 1966, the Tahsildar should have abated the proceedings for execution of the decree initiated by the petitioner. The Tahsildar took the view that the respondents have become sirdars and accordingly he dropped the proceedings. There he is clearly wrong. The proceedings for execution should not be abated.

3. Counsel for the petitioner submits that the proceedings should be decided in accordance with sub-rule (3) of Rule 39, sub-rule (3) provides that except as provided in sub-rule (2) every suit or proceeding stayed under clause (iv) of Rule 38 shall, whether pending in appeal, reference or revision, be continued and decided in accordance with the provisions of the U.P. Tenancy Act. Sub-rule (3) will not apply to the case. It is limited to suits and proceedings stayed under clause (iv) of Rule 38. T