D.B.Dutta, J. - (1.) A suit was filed for eviction of a monthly premises tenant under the West Bengal Premises Tenancy Act on the ground of default in payment of rent. The suit was decreed. The judgment and the decree passed by the trial court were upheld in the first and the second appeals. The plaintiff decree holder put the decree into execution. The defendant judgment debtor raised objection as to the executability of the decree by filing an application under section 47 CPC before the executing court. The said application was registered as a Misc. case. The case that was sought to be made out in that Misc. case may be stated as follows. The description of the defendant in the plaint and the application for execution of the decree is wrong and as such, no decree could be passed in the suit and the decree is inoperative inasmuch as the plaintiff decree holder did not take any step for rectification of the mistake. The decree was invalid and illegal for the following reasons. The decree has been obtained by practising fraud upon the court. The suit not having been filed under any of the sub sections of section 13 of the West Bengal Premises Tenancy Act was not maintainable. The plaintiff's claim for rent was not tenable inasmuch as nothing was due to the plaintiff from the defendant on account of rent particularly when the plaintiff withdrew the amount deposited with the court. Moreover, if there was any lapse on the part of the defendant's lawyer in making the deposit of rent payable by the defendant, the defendant could not be allowed to suffer and as such, the decree for eviction was not legal. After the defendant filed an application under section 17(2), the rent in arrear was determined by the court and even after the defendant parted with the requisite amount, the said amount was not properly deposited for which the defendant filed an application before the trial court which was liable to be treated as a part of his application under section 17(2) but before the disposal of that application, the plaintiff's application under section 17(3) was heard. This procedure was not legal and as such, the judgment passed by the trial court was not operative. The defandant was never a monthly tenant under the plaintiff in respect of the disputed property but that issue was not properly decided by the court. The real purport and significance of the provisions of sections 17(3) and 17(4) could not be placed before the court on behalf of the defendant and as such, the decree passed by the court was not legal. Since the defendant had deposited all the rent and the plaintiff has been withdrawing the same, he was not entitled to get any decree.
(2.) For the aforesaid reasons, the execution case was not maintainable and was liable to be dismissed.
(3.) The executing court initially proceded to take evidence that was being adduced on behalf of the defendant judgment debtor in the said Misc. case while the examination in chief of a witness of the judgment debtor was going on, the decree holder opposite party filed an application questioning the maintainability of the application under section 47 CPC and prayed before the executing court for adjournment of the taking of evidence and for fixing a date of hearing and deciding the question of maintainability raised by him. The court accordingly fixed a date for the purpose and upon a contested hearing, the executing court was pleased to reject the judgment debtor's application under section 47 CPC on a finding that it was not at all maintainable in view of the fact that the very questions which were raised in that application on behalf of the judgment debtor were raised and agitated during the trial of the suit and was finally decided against him by the trial court as well as the two appeal courts.;