1. This is an application for execution. The decree is for possession, but the defendant has taken the point that there is a 'Thica' tenant and is entitled to resist the application under the provisions of the Calcutta Thicka Tenancy Act 2 of 1949.
2. According to him, the matter is governed by Section 29 of the Thicka Tenancy Act, and this Court has no jurisdiction to proceed with the execution, but is bound to transfer it to the Controller acting under the Thicka Tenancy Act. It will be observed that the defendant has made no application under Section 28 of the Act, for rescinding or varying the decree. Therefore, for the purposes of this application, the decree stands, and all I have to see is as to whether I am bound to transfer this application to the Controller under Section 29 of the Act. Under that Section, an execution proceeding shall be transferred to the Controller if the proceeding relates to any matter in respect of which the Controller is competent, after the date of the commencement of the Act, to pass orders under it. Now I cannot see what order the Rent Controller can pass in case of a decree which is subsisting which I cannot as an executing Court, make. No section has been pointed out to me which gives the Rent Controller exclusive power to pass orders in execution proceedings. The powers of this Court cannot be taken away by implication, but there must be some express provision which takes away its jurisdiction and vests it in an inferior tribunal. No such express provision has been pointed out to me. Under the circumstances, I cannot see that any case has been made out, for the transfer of these proceedings to the Rent Controller. If the defendant is able to have the decree rescinded or varied, then a new set of circumstances will come into being which I need not consider for the purpose of this application.
3. Mr. Bose appearing on behalf of the defendant, has asked me to adjourn this matter to enable his client to make an application under Section 28 of the Act. Already the application for execution has been held up for a long time, and I do not see why I should hold it up any further. But Mr. Sanyal appearing on behalf of the landlord agrees that an order may be made on this application but without prejudice to any right that the defendant may have to apply under Section 28 of the Thicka Tenancy Act. Therefore I make an order according to the prayers in column 10 of the Tabular Statement, and the decree-holder is entitled to coats of this application. But this order is without prejudice to any right that Mr. Bose's client may have, to make an application under S, 28 of the Thicka Tenancy Act.
4. It is further agreed that the execution will not be actually proceeded with, for a period of seven days from date.
5. Certified for counsel.