- (1.) This Rule issued at the instance of a judgment-debtor tenant raises a point of construction of a clause in Section 17D (1) of the West Bengal Premises Tenancy Act, 1956. A short summary of the facts leading to the present application would be necessary. The opposite parties got a decree for ejectment against the Petitioner who was their tenant. The decree was affirmed upto this Court. Thereafter the opposite parties put the decree into execution and the Petitioner followed it up instantly with an application under Section 47 of the Code of Civil Procedure. That application was dismissed by the executing Court and also by the lower appellate Court and a second miscellaneous appeal was admitted in this Court. During the pendency of that miscellaneous appeal in this Court, in a. Civil Rule being C.R. No. 1536M of 1968, this Court made the Rule absolute on undertaking in favour of the "executing Court within ten days from today to the effect that the Petitioner must deliver vacant and peaceful possession of the disputed tenancy within a fortnight of the dismissal by this Court of the connected appeal, namely. S.M. A.T. No. 1981 of 1967 in favour of the landlord decree holder opposite party, if ultimately so dismissed by this Court. That undertaking was given to the executing Court. During the pendency of this second miscellaneous appeal in this Court, certain amendments were made in the West Bengal Premises Tenancy Act, 1956, and the Petitioner filed an application for relief under the amended provisions. That application was dismissed by the trial Court. Thereafter the Petitioner filed an application under Article 226 of the Constitution. That application is still pending. In that application, on the prayer of the Petitioner an injunction was granted restraining further proceedings in the execution case. Thereafter, the second. miscellaneous appeal was dismissed by this Court and, on the application by the opposite parties, the Court in season of the 226 matter vacated the order of injunction. The Petitioner preferred an appeal and that appeal was dismissed, but the appellate Court gave him time to deliver up vacant possession till the end of the month of May 1969, and it was further directed that after that date the opposite parties would be at liberty to proceed with the execution case. Upon a further application of the Petitioner, the date for delivery of vacant and peaceful possession was extended till June 3, 1969, and admittedly also on that date Vacant possession was delivered by the Petitioner to the opposite parties. After that the Petitioner filed an application under Section 17D of the West Bengal Premises Tenancy Act, 1956. The learned Court below held that as the possession had been recovered from the tenant by execution of the decree, Section 17D would no longer be available to the Petitioner and dismissed his application. Hence this Rule.
(2.) There are four requisites to an application under Section 17D, so to say, (i) the decree for recovery of possession of the premises must have been passed before the commencement of the West Bengal Premises Tenancy (Amendment) Act, 1968 ; (ii). it must have been so passed in a suit under that Act in which no order has been passed under Sub-section (3) of Section 17 striking out the defence against delivery of possession; (iii) the possession of such premises had not been recovered from the tenant by the execution of the decree; (iv) the application must be filed within the period of sixty days from the date of commencement of the West Bengal Premises Tenancy (Second Amendment) Act, 1969.
(3.) It is common ground in this case that the requisites Nos. 1, 2 and 4 have been complied with in this case. But the dispute between the parties is with regard to the point No. 3. It has, therefore, to be found in this case as to whether in the facts and circumstances of this case it can be held that the possession of the premises had not been recovered from the tenant by execution of the decree. Mr. Sushil Kumar Biswas, the learned Advocate appearing for the Petitioner, submits that as the decree-holders got the possession amicably from the Petitioner, it cannot be said that possession had been recovered by the execution of the decree. On the other hand, Mr. Pramatha Nath Mitter, the learned Advocate appearing for the opposite parties, submits that that would be putting a too restricted construction on the relevant clause. In my view, the contention raised by Mr. Mitter has to be sustained. The decree-holders did file an execution case for recovery of possession. It was in that execution case that the judgment-debtor Petitioner gave an undertaking to vacate by a particular time. That time was subsequently extended by this Court and on the basis of that undertaking this time, at least, the Petitioner honored it and delivered up possession. So, broadly speaking, it must be held that the possession had been taken by the decree-holders in that execution case, though not actually through the bailiff or with the help of the Police. I do not think that this clause would apply only where the judgment-debtor is thrown out with bag and baggage with the help of the bailiff or the Police. If such an interpretation is given, it would give a premium to dishonest people and would be taxing the generosity of the decree-holders to a limit which is not countenanced by reason or common sense. It is very often found in execution case for recovery of possession that the judgment-debtor prays for time and the decree-holders may be generous enough to agree in giving him more time to vacate. In such a case, to put the decree-holders to a further strain by urging that the delivery of possession had not been taken in execution of the decree, would be doing violence to the plain language used in the statute. Certainly the decree-holders should not be asked to pay for their generosity. The same grounds would apply where the time is extended by the Court. The decree-holders cannot be made to suffer because the Court acted generously toward the judgment-debtor and the judgment-debtor honored the direction of the Court. In my view, it would suffice if the possession is taken in the execution proceedings even amicably. But, if there is no execution proceedings, then of course point No. 3 will be fulfilled. In this view of the matter, I must hold that the learned Court below was justified in rejecting the application under Section 17D and in holding that the possession of the premises had been recovered from the tenant by execution of the decree and, as such, Section 17D would not apply.;