Sabyasachi Mukharji, J.
1. This is an application under Section 17-D of the West Bengal Premises Tenancy Act. 1956. In order to appreciate the controversy in this case it would be necessary to refer to certain facts. On the 20th September. 1952, there was a sub-lease executed by the plaintiffs in this suit who are lessees under the wakf property in favour of one Satyendra Nath Mitra, sub-lessee, since deceased, of the cinema house with the land at No. 38, Upper Circular Road, Calcutta, now known as Acharva Prafulla Chandra Road for a term of 8 years with option for renewal for another two years at a monthly rent of Rs. 1,400 for the cinema house and monthly rent of Rs. 600 for the furnitures and fittings. On the 11th April, 1955, the plaintiffs through their solicitor Mr. R.C. Kar served a notice to quit on the said Satyendra Nath Mitra on the ground of default in payment of rent. On the 5th July, 1955, the present suit being Suit No. 1333 of 1955 was instituted by the plaintiffs against Satyendra Nath Mitra for inter alia, recovery of possession of the said premises on the ground of default in payment of rent within the meaning of Section 14 (3) of the W. Bengal Premises Rent Control (Temporary Provisions) Act, 1950. Satyendra Nath Mitra filed his written statement on the 12th August, 1955. On the application of the plaintiffs on the 20th January, 1956, an order was made without prejudice to the rights and contentions of the parties, inter alia, directing Satvendra Nath Mitra, since deceased, to deposit the arrears of rent and in default the defence in so far as the same related to ejectment was directed to be struck off. On the 10th July, 1958, consent decree was passed in the instant suit No. 1833 of 1955 in accordance with the terms of settlement. It, inter alia, provided that Satvendra Nath Mitra would deliver up possession on the expiry of the period covered by the option as provided in the lease. On the 18th January, 1961. Satvendra Nath Mitra died leaving him surviving the petitioners and Sabita Ghosh as heirs and legal representatives. On the 25th September, 1962, the period covered by the option as provided in the lease expired. On the 19th November, 1962, an application was made by the plaintiffs for execution of the said consent decree dated 10th July. 1958 against the heirs of Satyendra Nath Mitra. Consent order was passed by the learned Master in accordance with the terms of settlement filed in the said execution proceeding The terms, inter alia, recorded the death of Satyendra Nath Mitra and time to deliver vacant possession was extended till the 30th of December, 1965 On the 14th January, 1966, second application for execution of the said consent decree dated 10th July, 1958, was made by the plaintiffs against the heirs of Satyendra Nath Mitra. Consent order was passed on the 15th February. 1966 in accordance with the terms of settlement filed in the 2nd execution proceeding. Time to deliver vacant possession was extended till the 31st July. 1967 and an undertaking was given to court by the heirs of Satyendra Nath Mitra to vacate the said premises within the said period, On the 7th June. 1967, the heirs and legal representatives of Satyendra Nath Mitra made an application in the instant Suit No, 1833/55 for, inter alia, a declaration that the consent order dated the 15th February, 1966, was invalid void and not binding on them and for discharge and release from the undertaking given by them in the said consent order. On the 26th June, 1967, order was made on the application of the defendant relegating the parties to a suit. The defendants filed the second suit being Suit No 1554 of 1967 in this Court. On the 10th July, 1967, an application was made in the said suit and an ad interim order was granted. On the 18th August. 1967, the said application of the defendants in the said suit was dismissed. There was an appeal filed being Appeal No. 192 of 1967. An order of injunction was passed on the 4th September. 1967. restraining the plaintiffs from executing or enforcing the consent decree dated 10th July, 1958 and the orders dated 19th November, 1962 and 15th February, 1966. On the 19th February, 1968 the plaintiffs obtained a rule for contempt against the Mitras for alleged breach of the undertaking. On the 21st February, 1968, the Appeal No 192 was disposed of by consent of the parties. The order dated 18th August. 1967, was set aside the hearing of the 2nd suit was expedited and the plaintiffs were restrained from executing the said decree and the order dated the 19th November, 1962 and the order dated 15th February. 1966 and certain directions were given. On the 21st April. 1969. the 2nd Suit No. 1554 of 1967 was decreed in favour of Mitras. It was, inter alia, held that the said consent decree dated 10th July, 1958 was not a decree for possession. The plaintiffs preferred an appeal on the 18th June, 1969, being Appeal No. 110 of 1969 from the said decree dated 21st April. 1969. There was no application made for stay of operation of the said decree by the plaintiffs. On the 14th November, 1969. Section 17-D of the West Bengal Premises Tenancy Act 1956, came into force, and this is a relevant date which 1 win have to consider later. The Appeal No. 110 of 1969 was allowed on the 11th October, 1974 and the decree dated the 21st April. 1969 in Suit No. 1554 of 1967 was set aside. I was a member of the Bench which heard the said appeal. It was inter alia, held that the said consent decree dated 10th July, 1958 was a decree for possession. On the prayer of Mitras however, the operation of the appellate decree was uncoditionally stayed till the 16th December. 1974. On the 14th December. 1974, the Mitras filed a petition under Article 133(1) of the Constitution of India against the decree dated 11th October, 1974, made in the 2nd suit. On the 16th December, 1974, directions were given for filing of the affidavits and ad interim stay for operation or execution of the decree was granted till the disposal of the application under Article 133(1). On the 10th January, 1975. the application of the Mitras under Article 133(1) was dismissed and the interim order was vacated. It was ordered that the plaintiffs would not execute the decree dated 11th October, 1974, for a period of three weeks, namely, upto the 31st January, 1975. On the 22nd January, 1975, the petitioner No. 2 it is stated, left for Delhi with his solicitor by train for the purpose of moving the Supreme Court. On the 24th January, 1975, the petitioner No. 2 reached New Delhi Counsel was briefed to draw and settle the proposed application under Article 136 of the Constitution and stay petition. The draft of the proposed appiication as settled was received from counsel for typing on the 28th January. 1975. On the 29th January, 1975, the petitioners' application under Article 136 of the Constitution alone with the petition for stay of operation of the decree dated 11th October 1974, was filed before the Supreme Court. On the 3rd February, 1975, the petitioners' application under Article 136 of the Constitution of India was dismissed toy the Supreme Court. On the 5th February, 1975, it is stated that the petitioner No. 2 who was conducting the case on behalf of all the petitioners left New Delhi for Calcutta as no railway booking was available earlier. On the 6th February, 1975, the petitioner No. 2 reached Calcutta. He has stated that he had caught chill while he was in Delhi and he became ill in Calcutta. He was confined to bed from 6th February, 1975 to 24th February, 1978. During this period he was under the treatment of one Dr. P.K. Goswamy who has sworn an affidavit. Thereafter, on the 20th February, 1975, certified copy of the Supreme Court's order of the 3rd February, 1975, was received by the petitioners' solicitor in Calcutta. The petitioner instructed his solicitor to prepare an application under Section 17-D of the West Bengal Premises Tenancy Act. 1956 and counsel was briefed and ultimately the application was made on the 1st March, 1975.
2. Section 17-D of the West Bengal Premises Tenancy Act which came into effect on the 14th November, 1969, is in the following terms:--
'17-D (1) Where before the commencement of the West Bengal Premises Tenancy (Amendment) Act, 1958, a decree for the recovery of possession of any premises was passed-
(a) in a suit under this Act, in which no order had been made under Sub-section (3) of Section 17 striking out defence against delivery of possession, only on the ground referred to in Clause (i) of Sub-section (1) of Section 13, or
(b) in a suit under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, by reason only of Clause (i) of the -proviso to Sub-section (1) of Section 32 of that Act: but the possession of such premises had not been recovered from the tenant by the execution of the decree, the tenant may within a period of sixty days from the date of commencement of the West Bengal Premises Tenancy (Second Amendment) Act, 1969, make an application to the Court which passed the decree to set aside the decree :
0Explanation:-- Where the decree was passed in the exercise of appellate jurisdiction an application under this subsection shall be made to the Court of firstinstance,
(2) Where an application has been made under Sub-section (1) for setting aside a decree, all proceedings in execution of the decree shall remain stayed until the application is disposed of.
(3) On receipt of an application under Sub-section (1) the Court shall cause a notice thereof to be served on the landlord and after hearing such evidence as the parties may edduce, determine-
(a) (i) Where the decree was passed in a suit under this Act the total amount that the tenant was liable to deposit or pay in accordance with the provisions of Sub-section (1) a Sub-section (2) of Section 17 during the period ending with the date of the decree after giving credit for every deposit or payment made by the tenant in accordance with such provisions during such period, or
(ii) where the decree was passed in a suit under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, the total amount that the tenant would have been liable to deposit on account of rent including the arrears of rent during the period ending with the date of the decree had an order been made in the suit by the Court under Sub-section (4) of Section 14 of that Act for deposit of rent at the rate at which it was lest paid and the arrears of rent, if any, after giving credit for every deposit made by the tenant for such rent or arrears during such period, and
(b) in either case, the total amount that the tenant remained liable to pay if he had to pay for the period commencing from the date of the decree and ending with the date of the order to be made tinder this sub-section, a monthly sum equivalent to the rent at which it was last paid, after giving credit for all such sums that the tenant might have deposited in the Court or with the Controller or paid to the landlord for such period, and direct the tenant, by order, to deposit in Court the aggregate of the amounts referred to in Clauses (a) and (b), together with such further amount as the Court may allow as Costs of the suit within such time, not exceeding sixty days from the date of the order as the Court may fix.
(4). If the tenant deposits the amounts ordered by the Court within the time fixed by it the Court shall allow the application under Sub-section (1) and set aside the decree for the recovery of possession passed in the suit and dismiss the suit.
(5) If the tenant fails to deposit the amounts ordered by the Court within the time fixed by it, his application under Sub-section (1) shall be dismissed with such costs as the Court may award to the landlord.'
The first question, therefore, that requires consideration is whether before the relevant date, namely, 14th November, 1969, a decree for recovery of possession was passed in a suit under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act by reason only of Clause (i) of the proviso to Sub-section (1) of Section 12 of the Act. In this case in view of the notice to quit upon which the decree was passed and the judgment upon which the Division Bench proceeded, it appears to me that this was A decree for recovery of possession which was passed in a suit under the West Bengal Premises Rent Control Act. Such a decree was passed long before the coming into operation of the West Bengal Premises Tenancy (Amendment) Act, 1968. But the possession of the premises had not been recovered from the tenant by the execution of the decree. The question is whether the present applicants are entitled to any benefit of Section 17-D of the Act In order to be entitled to such a benefit the tenant has to apply within a period of sixty days from the date of the commencement of the West Bengal Premises Tenancy (2nd Amendment) Act, 1969. This application was obviously long after that period. The point urged in support of this application, is, that on the 21st April. 1969, in Suit No. 1554/67 it was held by the trial Court that the decree dated 30th July, 1958, was not a decree for possession and was not executable and it was only on the 11th October, 1974, that in the judgment in the Appeal No. 110/69, that the decree of the 21st April, 1969 was set aside. Therefore, it was urged that for the period between April, 1969 to 13th January. 1974, according to the court's decision there was no decree for possession. In the premises, there was no occasion for the tenant to apply. It is further urged that on the 11th October, 1974, the operation of the appellate decree was stayed till the 16th December, 1974 and thereafter it was further stayed upto the 31st January, 1974 and upto the 3rd February, 1975, when the Supreme Court dismissed the petition for leave to appeal under Article 133 of the Constitution the tenant was pursuing a legal remedy which he was entitled to and there was sufficient cause thereafter shown because of the illness of the petitioner No, 2 which was supported by the affidavit of the doctor. In those circumstances, it was urged that the petitioner was entitled to extension of time. It was urged that under Section 39 of the West Bengal Premises Tenancy Act. 1956, the provisions relating to the limitation in the Limitation Act. 1908 would apply to the suits, appeals and proceedings under the Act. It may be mentioned incidentally that though Section 39 of the Act refers to the provisions of Indian Limitation Act, 1908, in my opinion, that reference in view of the provisions of General Clauses Act must read as to the Indian Limitation Act, 1963, inasmuch as the Indian Limitation Act, 1908, has been repealed.
3. In the case of Pokarmal Gurudayal v. Sagarmal Bengani, : AIR1972Cal430 it was held by the Division Bench of this Court that in an application under Section 17-E (1) of the West Bengal Premises Tenancy Act provisions of Section 5 of the Limitation Act. 1963 would be applicable if sufficient cause was shown, and inasmuch as the language used in Section 17-B (1) of the West Bengal Premises Tenancy Act and the language used in Section 17-D of the West Bengal Premises Tenancy Act, is the same, I am of the opinion, on the ratio of the aforesaid Division Bench judgment it must be held that the provisions of Section 5 of the Limitation Act will be applicable provided sufficient cause was shown in an application under Section 17-D of the Act. Counsel for the landlord, however contended that this was not the correct position of law. But the main question is when the tenant was required to apply. It was urged on behalf of the tenant-defendants in this case that the decree was not capable of execution until the stay was vacated on the 31st December, 1974. Therefore, sufficient cause was required to be shown for the period subsequent thereto. In this connection reference may be made to the decision of the Supreme Court in the case of Gojer Brothers (P.) Ltd v. Ratan Lal Singh, : 1SCR394 . There the Supreme Court held that the benefit of Section 17-D was available to a tenant if the decree for possession could be said to have been passed against him before the commencement of the West Bengal Premises Tenancy (Amendment) Act of 1968 which came into force with retrospective effect from the 26th August. 1967. The Supreme Court further observed that Section 17-D conferred power on the Court to set aside a decree which was operative and was capable of execution. The Supreme Court held that where the decree of the trial court was carried in appeal and the appellate court had disposed of the appeal after a contested hearing, the decree to be executed was the decree of the appellate court and not of the trial court. The reason for this rule was that in such cases the decree of the trial court merged in the decree of the appellate court. In that case the decree for possession of the premises was passed by the trial court in 1958 but the decree was taken up in the first appeal when it was confirmed and in the second appeal the High Court after a contested hearing dismissed the appeal and confirmed the decree of the first appellate court in 1969, that is, after and not before the commencement of the 1968 Act, the decree of the trial Court was held by the Supreme Court to have merged in the decree of the High Court and it was the decree of the High Court which was the only decree executable and, therefore, it was not liable to be set aside under Section 17-D of the Act. In the instant case before me there was no appeal as such from the decree for possession which was passed by consent of the parties. That decree is sought to be interfered with by this application under Section 17-D of the Act The fact that subsequent to the decree steps were taken by filing independent suit in which relief was sought to be obtained from the trial court that the decree was not executed does not in my opinion affect the position that the order in this case in respect of which relief against possession can be given was passed on the 10th July, 1958. It is true that the applicant obtained a declaration from the trial court that the decree was not executable and which was modified on the 11th October, 1974. In my opinion, in order to obtain relief under Section 17-D of the Act a tenant was obliged to act strictly within the period of 60 days from the commencement of the West Bengal Premises Tenancy (Second Amendment) Act, 1969. On that day there was a decree passed for possession prior to coming into operation of the Act. The tenant chose not to apply under Section 17-D of the Act but to rely on an earlier proceeding he had taken for a declaration that the decree was not executable by an independent suit. For such a tenant, in my opinion, double relief under Section 17-D was not envisaged. In any event after the decree in the appeal on 11th October, 1974 whereby it was held that the decree was executable, the tenant has not shown sufficient cause for not (prosecuting his remedy under Section 17-D of the Act. The fact that there was a stay of execution of the decree does not, in my opinion affect the tenant's right to apply under Section 17-D of the Act. In this connection, reliance may be placed on the decision in the case of Chunilal Basu v. Hon'ble Chief Justice, High Court Calcutta. : AIR1974Cal326 . Though facts were not quite similar, reliance may also be placed on the observations of this Court in the case of Dund Bahadur Singh v. Deo Nandan Prosad, (1913) 17 Cal LJ 596. I may mention here that if the view could be taken that there was sufficient cause for not applying, then the period during which the application was delayed for illness of petitioner No. 2 could have been extended on the basis of affidavit of such illness. I may mention, in this connection, that counsel for the applicant referred to the decision in the case of S.M. Ally v. Maung San Nyein, AIR 1936 Rang 183 in support of the proposition that illness was good and sufficient cause. It may incidentally be mentioned that in respect of a consent decree relief under Section 17-D was available. Reliance may be placed on the decisions in the case of Tarini Gupta Chowdhuri v. Manumatha Nath Ghatak, 53 Cal WN 855 = (AIR 1949 Cal 674), in the case of Tarakdas Dutta v. Sarat Chandra Paul, : AIR1953Cal335 , and in the case of Sm. Pratima Baul v. Indu Bhusan Baerjee, 0043/1972 : AIR1972Cal255 . In my opinion, in view of the terms of Section 17-D relief was available only to the tenant unto the period of 60 days from the date of commencement of the West Bengal Premices Tenancy (Second Amendment) Act, 1969. Therefore, in this case the relief, was available only upto sixty days from 14th November, 1969. The fact that thereafter and upto 1974 the petitioner obtained relief against that decree by an independent proceeding to avoid the decree which held that the decree was not executale in my opinion, is not relevant for determination of the question whether sufficient cause was shown or not. In the premises, in my opinion, the petitioners are not entitled to any relief under Section 17-D of the Act.
4. Another point was that the petition was not maintainable because one of the heirs had not been made a party. In view of the definition of 'tenant' under Section 2 (h) of the Act and in view of the fact that the expression 'tenant' is inclusive definition, in my opinion, it was not necessary that all the heirs of Satyendra Nath Mitra should have joined. Therefore, the application was not bad on this ground. It was further contended that in any event Sabita Ghosh was not residing with Satyendra Nath Mitra. That in my opinion is not relevant in deciding the question at this stage. In the view I have taken this application fails and is dismissed accordingly.
5. There will be no order as to cost.
6. There will be a stay of operation of this order for a period of six weeks.