Decided on March 14,1960



- (1.) THIS Second Miscellaneous Appeal arises out of a petition by the tenant defendant with respect to execution of the order of the Controller under section 5 of the Calcutta Thika Tenancy Act. It is not disputed that the defendant is a thika tenant nor is it disputed that an order was passed by the Controller under section 5 of the Calcutta Thika Tenancy Act by which the tenant was directed to deposit within thirty days a sum of Rs. 915/12/-, another sum of Rs. 4571141- and a third sum of Rs. 16. This order was passed by the Controller on the 30th September, 1955.
(2.) THE Court remained closed as well as the office of the Thika Controller for the Puja vacation and reopened on 17th November, 1955. The petitioner's case is, on the 17th November 1955 he paid the money to his lawyer, Mr. H. K: Chatterjee and the Chief Ministerial Officer of the Court signed the challan. Thereafter he went to the Treasury and stood at the queue for depositing the money. 17th November, 1955 is the date on which the Court reopened and, therefore, there was rush of work on that date and challan could not be obtained from the Chief Ministerial Officer of the Court before 11-30 A. M. By that time the queue was very long at the Treasury and he had to wait whole day but even then could not deposit the money. On the next day he deposited the money. Thereafter the Controller passed an order that the payment be noted in the Books of the Court. The opposite party landlord thereafter filed an application before the. Controller for vacating the order as the money was deposited out of time. The Controller, who ordered on the 30th. September and who directed that the payment be noted, was transferred and the matter came up before his successor-in-office. The said petition of the landlord was dismissed on 11th January, 1956 holding that the land-Lord might take any objection he liked at the execution stage and his objection was rejected as mis-conceived. Thereafter the landlord started execution and the tenant opposed that execution and the matter came up on the 25th March, 1957 before Shri P. K. Chatterjee and, according to him, the deposit could not be made because of Treasury Rules on the 17th and, therefore, it was made on the 18th and according to him, he followed a decision of this High Court in (1) A. I. R. 1925 Cal. 791 and the petition was dismissed. Against that order an appeal was taken to the District Judge which was registered as Misc. Appeal No. 341157. The District Judge, however, held that the deposit was not within the time and therefore, the objection case was directed to be dismissed and the execution case was directed to be proceeded with. Against that a Second Miscellaneous appeal has been filed in this Court and also a petition under Article 227 of the Constitution.
(3.) AS there is no provision for a second appeal against the order of a District Judge under the Calcutta Thika Tenancy Act, the Second Miscellaneous Appeal must be dismissed. I, therefore, proceed to consider the application under Article 227 of the Constitution. It has been urged on behalf of the petitioner: (1) that the provision of section 6 of the Calcutta Thika Tenancy Act is not mandatory but directory; (2) the Controller who passed the order on the 30th November and who signed the challan on the 18th November knew fully well the facts of the case and he not merely allowed the challan to be passed on the 18th but directed it to be noted in the book. If the learned Controller who himself passed the order understood the circumstances under which he could not put in the money on the 17th, it is not for others to say that the Treasury Rules did not prevent him from depositing. The third thing that has been stated is that the order of his successor-in-office on the 11th January, 1956 is final and binding between the parties and his observation that the point could be taken at the execution stage is a mere observation and the question is barred by the doctrine of res judicata.;

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