Case: Kanai Lal Sur Vs. Paramnidhi Sadhukhan

1. This is an appeal by special leave in execution proceedings and the short point which the appellant has raised before us is that, under S. 5(1) of the Calcutta Thika Tenancy Act II of 1949 (West Bengal Act II of 1949) as amended by the Calcutta Thika Tenancy (Amendment) Act, 1953 (West Bengal Act VI of 1953), execution proceedings taken out by the decree-holder against him could be entertained only by the controller and not by the civil CourtsThis point arises in this way. The appellant is a thika tenant in respect of a portion of the premises No. 28, R. G. Kar Road in Calcutta.. In Suit No.46 of 1948 a decree for ejectment was passed against him and in favour of the respondent on March 16, 1949. This decree was challenged by the appellant by preferring an appeal before the District Court and a second appeal before the High Court at Calcutta; but both those appeals failed and the decree for ejectment passed by the trial Court was confirmedThen followed several proceedings between the parties and the course of litigation between them turned out to be protracted and tortuous. Ultimately on May 22, 1953, the respondent filed an execution case before the First Additional Court, Sealdah (Title Execution Case No.34 of 1953). By this application the respondent claimed that the possession of the property covered by the decree should be delivered to himThereupon the appellant filed a Miscellaneous Judicial Case under S. 47 of the Code of Civil Procedure in the Court raising several objections to the decree-holders claim for execution (Miscellaneous Judicial Case No.96 of 1953). This case was dismissed by the executing Court on February 2, 1954A miscellaneous appeal preferred by the appellant before the learned District Judge, 24 Parganas as well as the second miscellaneous appeal preferred by him before the High Court at Calcutta were likewise dismissed. The appellant then applied for leave to prefer an appeal under the Letters PatentThis application was rejected by Mr. Justice Renupada Mukherjee who had heard the second appeal. On May 10, 1955, the appellant filed a petition for special leave to appeal to this Court and special leave was granted to him on May 18, 1955The Courts below have held that the decree-holders application for execution of the decree passed in his favour can and ought to be entertained by the civil Courts and an order has been passed against the appellant that he should vacate the premises in question before the end of Jaistha 1362 B.S. (15th June, 1955), failing which execution will proceed according to lawS. 5(1) of the Calcutta Thika Tenancy Act II of 1949

Reasoning:
It is clear that since S. 28 along with S. 29 has been deleted from the Act by the subsequent amending Act VI of 1953, any reference to S.28 in S. 5 (1) would have been entirely out of place.But the deletion of the material words does not enlarge the jurisdiction of the Controller to reopen disputes between the landlords and their thika tenants when in respect of such disputes decrees have already been passed by Courts of competent jurisdiction in favour of landlordsIt would, therefore, not be reasonable to complain that no protection whatever has been given to this class of thika tenants. It may be that the extent of the protection now afforded to this class may not be as wide as it originally was under S. 28 of Act II of 1949 but the deletion of S. 28 clearly indicates that the Legislature wanted to revise its policy in this matter. The position, therefore, is that the conclusion which follows from a reasonable construction of S. 5, sub-s. (1) is corroborated by the deletion of S. 28 from the Act and by the provision of S. 5, sub-S. (2) of the amending Ordinance of 1952 and S. 9 of the amending Act VI of 1953We must, accordingly, hold that the Calcutta High Court was right in rejecting the appellants argument that civil Courts had no jurisdiction to entertain the execution petition filed by the respondent against the appellant.