Case: Nathia Agarwalla &amp; Another Vs. Musst. Jahanara Begum &amp; Others

The appellants against whom the decree for ejectment is being executed are the widow and son of one Maliram Agarwala whose father Arjun Das had taken on lease the suit land from one Mohd. Soleman, predecessor-in -interest of the respondents. The decree was passed as far back as November 28, 1950 in a title suit filed against the appellants and was later confirmed by the High Court.2. The present execution began on August 16, 1954 and was pending in the Court of the Subordinate Judge. L. A. D. Ganhati when the Assam Non-Agricultural Urban Areas Tenancy Act. 1955 (Assam Act XII of 1955) came into force from June 26, 1955. The appellants thereupon claimed the benefit of S 5 of the Act which grants protection from eviction to tenants, under certain circumstances. The Execution Court heard arguments and on November 12, 1957 held that the protection of S. 5 was available not only in pending suits and appeals but also in pending execution cases. In reaching this conclusion the learned Judge followed a decision of the Assam High Court reported in Harsukh Sarawgi v. Mashulal Khemani, AIR 1957 Assam 22 and of the Calcutta High Court in Habiba Bibi v Ram Ranjan Mullick. AIR 1937 Cal 207  . He accordingly fixed the case for evidence to find out if there existed facts necessary for the application of S 5 of the Act. Subsequently, the Presiding Judge having changed, the point was reopened on June 6, 1959 by the successor Judge. That learned Judge following a later decision of the Assam High Court (since reported in Suresh Chandra Datta v Ashutosh Dutta AIR 1960 Assam 24), held that S. 5 (1) (a) was not applicable to execution proceedings and the pending execution must proceed according to law.

Reasoning: These enactments, which are quite explicit show, that where the Assam Legislature wished it, it included execution proceedings within the protection. Being aware that if execution proceedings are to be included they need to be mentioned and having at hand the former sections as models, the departure appears to be deliberate. The language chosen places the right under an embargo but does not say that decrees already won would become unexecutable thus stating, clearly that they were not to he affected. The decision under appeal was, therefore, right