S.R.Das Gupta, J. - (1.) THIS is an appeal from a decision of the Subordinate Judge, second court, Howrah, dated August 6, 1953, affirming the decision of the Munsif, second court, Howrah, dated July 7, 1953.
(2.) THE matter arises in this way: There was a decree for ejectment against the Appellant in Title Suit No. 316 of 1941 in the second court of the Munsif, Howrah. The premises in question was 95/1, Dharamtola Road, Howrah. On August 8, 1941, the said decree was passed. Thereafter, an appeal was filed against the said decree and on April 9, 1943, the appeal was dismissed. Thereafter, the Administrator -General of West Bengal, who is the present Respondent, came to be substituted in place of the original decree -holders and he started an execution case being Execution Case No. 94 of 1949. In the meantime the Thika Tenancy Act of 1949 had come into existence and on March 19, 1952, an application was made under Section 28 of the said Act. That section provides that where any decree or order for the recovery of possession of any holding from a thika tenant has been made before the date of commencement of that Act but the possession of such holding has not been recovered from the thika tenant by the execution of such decree or order, the court by which the decree or order was made may, if it is of opinion that the decree or order is not in conformity with any provision of this Act other than Sub -section (1) of Section 5 or Section 27, rescind or vary the decree or order. During the pendency of that application made under Section 28 of the Act, the Thika Tenancy Ordinance of 1952 came into force. The said Ordinance was passed on October 21, 1952. Thereafter, an Amending Act being Act VI of 1953, was passed. Section 8 of the said Act provides that Sections 28 and 29 of the Act of 1949 shall be omitted. Sub -clause (2) of Section 1 of the Amending Act which is material for our present purpose, reads as follows: It shall come into force immediately on the Calcutta Thika Tenancy (Amendment) Ordinance, 1952, ceasing to operate: Provided that the provisions of the Calcutta Thika Tenancy Act, 1949, as amended by this Act, shall, subject to the provisions of Section 9, also apply and be deemed to have always applied to all suits, appeals and proceedings pending. (a) before any court, or (b) before the Controller, or (c) before the person deciding an appeal under Section 27 of the said Act, on the date of the commencement of the Calcutta Thika Tenancy (Amendment) Ordinance, 1952. Thereafter, the said application under Section 28 came to be heard and was dismissed on July 7, 1953, by the learned Munsif, the ground of such dismissal being that having regard to the provisions of the Amending Act to which I have referred Section 28 is no longer in existence, and was not applicable. Against the said decision there was an appeal, the appeal was also dismissed and thereafter the present appeal before us has been filed.
(3.) THE learned advocate appearing on behalf of the Appellant contended that the view taken by the courts below was wrong. He contended that notwithstanding the provisions of the Amending Act of 1953. Section 28 of the old Act was still applicable to all pending proceedings. In support of that contention, he relied upon a decision of this Court given in the case of Deorajin Debi and Anr. v. Satyadhan Ghosal and Ors. (1953) : 58 C.W.N. 64.;