D.C.CHAKRAVORTI, J. - (1.) THIS Rule is directed against order No. 97 dated 27 -1 -79 made by the learned Munsif, 6th Court at Alipore on an application made by the tenant -judgment -debtor under Section 47 of the Code of Civil Procedure. By the said order the learned Munsif dismissed the Miscellaneous Case arising out of the said application under Section 47 of the Code of Civil Procedure.
(2.) THE facts leading to the present application, stated succinctly, are as follows : - - Sometime in 1960, the decree -holder opposite Party No. 1 brought a suit for eviction against one Nalini Bhushan Roy Chowdhury, the predecessor -in -interest and the father of the petitioner and the opposite parties Nos. 2 to 4 on the grounds that said tenant defaulted in payment of rent since September 1958, that the plaintiff required the suit premises for his own use and occupation and for purposes of building and re -building and that the tenant sublet a portion without the knowledge and consent of the landlord. In February 1963, the suit was decreed on the ground of reasonable requirement of the suit premises of the plaintiff for his own use and occupation. The appeal preferred from the decisions of the trial Court was dismissed by the learned Subordinate Judge 7th Court at Alipore. There was a second appeal filed from the decision of the Court of Appeal below and a Rule was issued calling upon the landlord decree -holder to show cause as to why further proceedings in the Title Execution Case No. 42 of 1964 arising out of the said decree should not be stayed. The said Rule was issued on condition that the tenant -petitioner would vacate 3 rooms together with a kitchen and a bath room within a period of one month from the date of the Rule. The case of the tenant -petitioner is that in obedience to the said order of this Court delivery of possession of a portion of the suit premises was made. The truth of this fact was denied by the landlord -decree holder. While making the said Rule absolute this Court directed that as the possession of about half the tenancy was delivered in pursuance of the order of this Court the tenant was to deposit Rs. 35/ - instead of Rs. 70 p.m. and that he should go on depositing the rent every month at the rate of Rs. 35/ -per month as aforesaid month by month in the trial Court within 15th of each following month and that in default the Rule would stand discharged. The original defendant -appellant died intestate on January 13, 1973 leaving behind the petitioner and opposite parties Nos. 2 to 4 as his heirs and legal representatives. On January 25, 1971, the aforesaid second appeal was dismissed for default. Sometime in 1973, the present petitioner filed two applications - - one for restoration of the said second appeal and the other for substitution - - and the Rules which were issued on the basis of those two applications were ultimately discharged.
(3.) IN the said application under Section 47 of the Code of Civil Procedure, the case that was sought to be made out by the petitioner was as follows: The tenant in pursuance of the order of the Hon'ble High Court delivered possession of the first floor of the suit premises to the authorised agent of the plaintiff and a fresh tenancy at a rental of Rs. 50/ - per month was created on October 10, 1964 in respect of the rest of the premises. The judgment -debtor further paid a sum of Rs. 1000/ - as ad -vance to the decree -holder and permitted him to construct a privy in the ground floor and as the decree was already satisfied by delivery of possession of the first floor of the suit premises in pursuance of the order of this Court, the Execution Case was not maintainable.;