Hidayatullah, J. - (1.) This is an appeal by special leave against an order of the High Court of Assam, dated August 14, 1959 rejecting summarily an appeal in an execution case. The appellants against whom the decree for ejectment is being executed are the widow and son of one Maliram Agarwala whose father Arjun Das had taken on lease the suit land from one Mohd. Soleman, predecessor-in -interest of the respondents. The decree was passed as far back as November 28, 1950 in a title suit filed against the appellants and was later confirmed by the High Court.
(2.) The present execution began on August 16, 1954 and was pending in the Court of the Subordinate Judge. L. A. D. Ganhati when the Assam Non-Agricultural Urban Areas Tenancy Act. 1955 (Assam Act XII of 1955) came into force from June 26, 1955. The appellants thereupon claimed the benefit of S 5 of the Act which grants protection from eviction to tenants, under certain circumstances. The Execution Court heard arguments and on November 12, 1957 held that the protection of S. 5 was available not only in pending suits and appeals but also in pending execution cases. In reaching this conclusion the learned Judge followed a decision of the Assam High Court reported in Harsukh Sarawgi vs. Mashulal Khemani, AIR 1957 Assam 22 and of the Calcutta High Court in Habiba Bibi v Ram Ranjan Mullick. AIR 1937 Cal 207. He accordingly fixed the case for evidence to find out if there existed facts necessary for the application of S 5 of the Act. Subsequently, the Presiding Judge having changed, the point was reopened on June 6, 1959 by the successor Judge. That learned Judge following a later decision of the Assam High Court (since reported in Suresh Chandra Datta v Ashutosh Dutta AIR 1960 Assam 24), held that S. 5 (1) (a) was not applicable to execution proceedings and the pending execution must proceed according to law. The only question in this case is whether the provisions of S 5 (1) (a) of the Tenancy Act' apply to pending execution proceedings.
(3.) The Act was passed "to regulate in certain respects the relationship between landlord and tenant in 'respect of non-agricultural land in urban areas of the State of Assam." It consists of 14 sections. Section 5, with which we are primarily concerned, may be read in full. It reads: "5. Protection from eviction - (1) Notwithstanding anything in any contract or in any law for the time being in force - (a) where under the terms of a contract entered into between a landlord and his tenant whether before or after the commencement of this Act, a tenant is entitled to build, and has in pursuance of such terms actually built within the period of five years from the date of such contract, a permanent structure on the land of the tenancy for residential or business purposes, or where a tenant not being so entitled to build, has actually built any such structure on the land of the tenancy for any of the purposes aforesaid with the knowledge and acquiescence of the landlord, the tenant shall not be ejected by the landlord from the tenancy except on the ground of non-payment of rent. (b) where a tenant has effected improvements on the land of the tenancy under the terms whereof he is not entitled to effect such improvements, the tenant shall not be ejected by the landlord from the land of the tenancy unless compensation for reasonable improvements has been paid to the tenant. (2) No tenant shall be ejected by his landlord from the land of the tenancy except in execution of a decree for ejectment passed by a competent civil Court. 3. No decree for ejectment passed on the ground of non-payment of rent shall be executed within a period of thirty days from the date of the decree if the tenant pays into the Court whose duty it is to execute the decree the entire amount payable under the decree within the aforesaid period, the Court shall record the decree as satisfied." The remaining sections may be shortly noticed before we proceed to construe S. 5. The first three sections contain respectively the short title, the extent of application and the definitions of terms in the Act. Section 4 puts an obligation upon a tenant to pay rent for his holding at fair and equitable rates. Section 6 lays down how compensation for improvements in a suit for ejectment against a tenant is to be calculated and includes within improvements structures, which the tenant entitled to build has actually built after the expiry of the period of five years referred to in Cl. (a) of sub-s. (1) of S. 5. Sections 7, 8 and 9 deal with the question of enhancement of rent from different points of view. Section 10 prohibits the realisation of any "salami". Section 11 provides that no suit for ejectment, except for arrears of rent, shall be instituted until after the expiration of one month from the date of the receipt by the tenant of a notice in writing by the landlord requiring the tenant to surrender possession of the land in favour of the landlord. Section 12 shows how the notices have to be served and S. 13 gives the power to make rules. By S. 14, the Sylhet Non-Agricultural Urban Areas Tenancy Act, 1917 (Assam Act X of 1947) was repealed. ;