P.K. Banerjee, J. - (1.) This revisional application is one under Sec. 115 of the Civil procedure Code and is directed against Order No. 24 dated August 20, 1985 passed by the Learned Munsif, 3rd Court, Howrah in connection with Misc. Case No. 151 of 1983.
(2.) The fact leading to filing of the instant revision may be summed up thus: (i) That one suit being T.S. No. 30 of 1968 was filed by Bimal Kumar Das against one Butto Krishna Dutta for eviction and other consequential relief. (ii) The said suit was decreed on June 23, 1971. (iii) The Learned Trial Judge decreed the suit and gave relief to the Plaintiff and also allowed the prayer for mesne profit which was fixed at Rs. 63/ - per month. (iv) The said mesne profit was given into effect from October 1967 till delivery of possession. (v) Thereafter, the Decree Holder filed one execution case on May 23, 1983. (vi) the legal heirs of Butta Krishna Dutta who died in the meantime, filed application under Sec. 47 of the Code of Civil Procedure. (vii) In the said application under Sec. 47 of the Code of Civil Procedure, the legal heirs of the original judgment Debtor took the specific plea that the execution case is not maintainable as the matter has been settled outside the Court and the landlord Decree Holder created new tenancy in favour of the judgment Debtor on the basis of oral agreement. It is also the specific case of the judgment Debtor that as per agreement, the rent was enhanced to Rs. 150/ - initially and subsequently the same was enhanced to Rs. 175/ - per month. (viii) It is also the case of the judgment Debtor that rent @ Rs. 150/ - per month was paid from July 1981 which was accepted by the decree Holder landlord by issuing rent receipts. Thereafter, the rent was enhanced to Rs. 175/ - per month from September 1981 and rent receipts were granted accordingly. (ix) It is the further case of the preset Petitioners that on the basis of the oral agreement new tenancy was created and as such, the Decree Holder landlord did not put the decree in execution till May 23, 1983. (x) it is the further case of the judgment Debtor that as the Decree Holder accepted the judgment Debtor as tenant afresh on the basis of oral agreement by accepting enhanced rent, the filing of the execution case was against the provision of law and as such, the same is not maintainable. (xi) The said application under Sec. 47 of the Code of Civil Procedure was numbered as Misc. Case No. 151 of 1983. (xii) The Decree Holder contested the said application by filing written objection wherein specific plea was taken that the amount so received from the judgment Debtor was towards settlement of amount of mesne profit. (xiii) The Decree Holder denied that any such agreement was entered into in between the Decree Holder and the judgment Debtor. (xiv) The Decree Holder also denied that new tenancy was created on the basis of oral agreement and that on the basis of new tenancy, the enhanced rent was accepted. (xv) Witnesses were examined on behalf of the parties and documents were also marked in course of said proceeding. (xvi) The Learned Munsif dismissed the application under Sec. 47 of Code of Civil Procedure and being aggrieved and dissatisfied with the said order of the Learned Munsif, the instant revision was preferred by the judgment Debtors.
(3.) Mr. S.P. Roychowdury, Learned Senior counsel for the present Petitioner in course of his strenuous argument challenged the findings of the Learned Trial Judge on the following grounds: (i) That the Learned Munsiff did not consider that the execution case was filed after about 11 years without giving any proper explanation. (ii) That the Learned Munsiff ought to have considered that there must have been an intermediate arrangement in between the parties for which the Decree Holder did not file the execution case earlier. (iii) That the Learned Munsif did not consider that the matter has been settled outside the court. (vi) That the Court did not consider that on the basis of oral agreement in between the Decree Holder and the judgment Debtor, fresh tenancy was created and the judgment Debtor paid enhanced rent on the basis of oral agreement. (v) That the Court below did not consider that the Decree Holder accepted the said enhanced rent by issuing rent receipts. (vi) That the Court did not consider that the letter written by the Decree Holder stating that the amount was adjusted towards the mesne profit was subsequent to the grant of rent receipts by the Decree Holder in favour of the judgment Debtor.;