Surendra Narain Dwivedi, J. - (1.) 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 u/S. 175 UP 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 UP Government. Subsequently, on July 1, 1965, the UP UAZA and LR Act was enforced in the city of Jaunpur. And then the petitioner's application for execution was stayed u/R. 38(viii) of the UP UAZA and LR 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. S. 10 of the Act provides for consequences of the vesting of the zamindari in the State. Cl. (i) of S. 10 says that all suits and proceedings of the nature to be prescribed pending in any court on the date of vesting and all proceedings upon any decree or order passed in any such suit or proceeding previous to the date of vesting, shall be stayed. R. 38 provides for the stay of proceedings of various kinds. Cl. (iv) provides that suits, applications or proceedings, including appeals, references and revisions relating to or pending under, inter alia, S. 175 of the UP Tenancy Act shall be stayed. Cl. (viii) of R. 33 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 Cl. (iv) shall remain stayed. R. 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 u/Cls. (i), (ii), (iii), (v) and (vii) of R. 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 R. 39 are associated with the other clauses of R. 38 except its Cl. (viii). R. 39, looked at as a whole, provided either for abatement of certain proceedings or their continuance. As Cl. (viii) of R. 38 was not mentioned in any part of R. 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. R. 39(1) was amended on December 21, 1965. The amendment added Cl. (viii) of R. 38 in sub -R. (1) of R. 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 now be abated.
(2.) Counsel for the petitioner submits that the proceedings should be decided in accordance with sub -R. (3) of R. 39. Sub -R. (3) provides that except as provided in sub -R. (2) every suit or proceeding stayed u/Cl. (iv) of R. 38 shall, whether pending in appeal, reference or revision, be continued and decided in accordance with the provisions of UP Tenancy Act. Sub -R. (3) will not apply to the case. It is limited to suits and proceedings stayed u/Cl. (iv) of R. 38. The proceeding for execution in the instant case was not stayed u/Cl. (iv) of R. 38; it was stayed u/Cl. (viii) of R. 38.
(3.) It seems to me that the scheme of R. 39 is two -fold. Where a suit or proceeding is stayed, it shall be decided on the merits bearing in mind the provisions of the Act read with R. 40. Where a decree passed before the date of vesting is stayed u/Cl. (viii) of R. 38, it will be abated u/R. 39(1). After abatement the claims of the parties to the execution proceedings will be decided in accordance with the provisions of the Act. This follows from R. 40 says that nothing in R. 38 shall be construed as depriving any party to the suit or proceeding from any right which may have accrued to him under the Act. So inspite of the abatement of the execution proceedings it will be open to the petitioner and the respondents to claim any right which may have been conferred on either of them by the Act. Of course, the claim will be subject to the law of limitation, if any, provided for in the Act.;