- (1.) This is an appeal by special leave in execution proceedings and the short point which the appellant has raised before us is that, under S. 5(1) of the Calcutta Thika Tenancy Act II of 1949 (West Bengal Act II of 1949) as amended by the Calcutta Thika Tenancy (Amendment) Act, 1953 (West Bengal Act VI of 1953), execution proceedings taken out by the decree-holder against him could be entertained only by the controller and not by the civil Courts. This point arises in this way. The appellant is a thika tenant in respect of a portion of the premises No. 28, R. G. Kar Road in Calcutta.. In Suit No.46 of 1948 a decree for ejectment was passed against him and in favour of the respondent on March 16, 1949. This decree was challenged by the appellant by preferring an appeal before the District Court and a second appeal before the High Court at Calcutta; but both those appeals failed and the decree for ejectment passed by the trial Court was confirmed. Then followed several proceedings between the parties and the course of litigation between them turned out to be protracted and tortuous. Ultimately on May 22, 1953, the respondent filed an execution case before the First Additional Court, Sealdah (Title Execution Case No.34 of 1953). By this application the respondent claimed that the possession of the property covered by the decree should be delivered to him. Thereupon the appellant filed a Miscellaneous Judicial Case under S. 47 of the Code of Civil Procedure in the Court raising several objections to the decree-holder's claim for execution (Miscellaneous Judicial Case No.96 of 1953). This case was dismissed by the executing Court on February 2, 1954. A miscellaneous appeal preferred by the appellant before the learned District Judge, 24 Parganas as well as the second miscellaneous appeal preferred by him before the High Court at Calcutta were likewise dismissed. The appellant then applied for leave to prefer an appeal under the Letters Patent. This application was rejected by Mr. Justice Renupada Mukherjee who had heard the second appeal. On May 10, 1955, the appellant filed a petition for special leave to appeal to this Court and special leave was granted to him on May 18, 1955. The Courts below have held that the decree-holder's application for execution of the decree passed in his favour can and ought to be entertained by the civil Courts and an order has been passed against the appellant that he should vacate the premises in question before the end of Jaistha 1362 B.S. (15th June, 1955), failing which execution will proceed according to law. The appellant's contention is that the view taken by the Courts below about the competence of the civil courts to entertain the decree-holder's execution application proceeds on a mis-construction of S. 5 (1) of the Calcutta Thika Tenancy Act. That is how the only question which arises for our decision is about the construction of the said relevant section.
(2.) Before dealing with this point, it would be useful to consider briefly the history of legislation passed by the West Bengal Legislature with the object of affording protection to the thika tenants. Until 1948 the rights and liabilities of the landlords and their thika tenants were governed by the provisions of the Transfer of Property Act. On October 26, 1948, the Calcutta Thika Tenancy Ordinance XI of 1948, was promulgated because it was thought expedient, pending the enactment of appropriate legislation to provide for the temporary stay of the execution of certain decrees and orders of ejectment of thika tenants in Calcutta. Section 2 of the Ordinance defined the thika tenant. Section 3 provided that no decree or order for the ejectment of a thika tenant shall be executed during the continuance in operation of the Ordinance. From the operation of this section were excluded decrees or orders for ejectment passed against thika tenants on the ground of non-payment of rent unless the tenants deposited in Court the amount of the decree or order as required by the proviso. The object of the Ordinance clearly appears to be to give protection to the thika tenants in Calcutta and to afford them interim relief by staying execution of certain decrees and orders as mentioned in S. 3 until an appropriate act was passed by the Legislature in that behalf.
(3.) Then followed Act II of 1949 on February 28, 1949. Section 2, sub-s.(5) of this Act defines a thika tenant. Section 3 lays down the grounds on which a thika tenant may be ejected. The effect of this section is that it is only where one or more of the six grounds recognized by S. 3 is proved against a thika tenant that a decree for ejectment against him can be passed. In other words, grounds other than those mentioned in S. 3 on which a landlord would have been entitled to eject his thika tenant under the provisions of the Transfer of Property Act became inapplicable to the case of the thika tenants by virtue of S. 3, Section 5, sub-s.(1) reads thus: "S. 5 (1) Notwithstanding anything contained in any other law for the time being in force, a landlord wishing to eject a thika tenant on one or more of the grounds specified in S. 3 shall apply in the prescribed manner to the Controller for an order in that behalf and, on receipt of such application, the Controller shall, after giving the thika tenant a notice to show cause within thirty days from the date of service of the notice why the application shall not be allowed and after making an inquiry in the prescribed manner either allow the application or reject it after recording the reasons for making such order, and, if he allows the application, shall make an order directing the thika tenant to vacate the holding and, subject to the provisions of S.10, to put the landlord in possession thereof." This section requires the landlord wishing to eject his thika tenant on one or more of the grounds specified in S. 3 to apply in the prescribed manner to the Controller for an order in that behalf. This section further provides for the procedure to be followed by the Controller in dealing with such an application. Two other sections of this Act need to be considered. Section 28 deals with cases where decree or orders for the recovery of possession of any holding from a thika tenant have been passed before the date of the commencement of the Act and it lays down that if possession has not been obtained by the decree holder in execution of such decrees or orders the Court may consider whether the decree or order in question is or is not in conformity with any of the provisions of the Act other than sub-s.(1) of S. 5 or S. 27. On considering this matter jurisdiction is given to the Court to rescind or vary the decree or the order for the purpose of giving effect to the relevant provisions of this Act. A decree or order so varied has then to be Sent to the Controller for execution as if it were an order made under and in accordance with the provisions of the Act. Having thus dealt with decrees and orders for ejectment passed against thika tenants prior to the commencement of this Act, S. 29 proceeds to deal with pending proceedings for ejectment between the landlords and the thika tenants. This section lays down that all pending proceedings of this character shall be transferred to the Controller who shall thereupon deal with them in accordance with the provisions of this Act as if this Act had been in operation on the date of the institution of the suit or proceeding. The proviso to this section exempts the application of S. 4 of this Act to such proceedings for obvious reasons. ;