Sankar Prasad Mitra, C.J.
1. On September 14, 1914, the lease in, respect of the suit land (13 Bighas 8 Cot-tas and 13 Sq. Ft.) was executed by the predecessor-in-interest of the parties for a period of 15 years commencing from the 1st Ashar, 1321 B.S. with option for renewal for another 10 years.
2. On May 28, 1940, the appellant filed a suit for ejectment after expiry of the original term and the renewed term and for recovery of arrears of rent and mesne profits in the appropriate Court.
3. On the 30th May, 1940 the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act IX of 1940 came into force.
4. On March 28, 1941, the trial court dismissed the plaintiff's claim for ejectment but only granted a decree for rents.
5. The plaintiff preferred an appeal. This was T. A. No. 210 of 1941 in the Subordinate Judge's Court at Alipore. On the 12th January, 1942, the Second Additional Subordinate Judge, Alipore, allowed the appeal granting a decree for ejectment and confirming the decree for rents and mesne profits which the trial court had passed.
6. On the 6th March, 1942, Gangjee Sajun & Co. the lessee under the said lease preferred a second appeal to this Court marked S. A. No. 614 of 1942.
7. The High Court on July 2, 1946, affirmed the decree of the Second Additional Subordinate Judge at Alipore with the variation that the execution of the decree would remain stayed so long as the Bengal Non-Agricultural Tenancy (Temporary provisions) Act IX of 1940 was in force.
8. On May 15, 1949, the said Temporary Provisions Act was repealed by the West Bengal Non-Agricultural Tenancy Act (Act XX of 1949). Soon after the repeal of the Temporary Provisions Act, the decree-holder in the ejectment suit filed an execution petition. This was marked as T. Ex. Case 48/1950 in the Third Court of the Munsif at Alipore dated the 24th March, 1950.
9. On the 17th January, 1953, on the objection of Gangjee Sajun & Co. the execution case (Misc. Case No. 223 of 1950) was dismissed.
10. On July 24, 1953, the order dismissing the execution case was affirmed in appeal (Misc. Appeal No. 137 of 1953) by the Second Additional Subordinate Judge, Alipore.
11. The decree-holder then preferred an appeal to this Court on the 8th September, 1954 (S.M.A. 41 of 1954).
12. On the 26th June, 1958 Binayak Banerjee, J. referred S.M.A. 41 of 1954 to a Division Bench.
13. The appeal was heard by P. N, Mukherjee, J. and Niyogi, J. The arguments before the Division Bench centred round the provisions of Section 88 of the West Bengal Non-Agricultural Tenancy Act, 1949 which was a permanent Act. Section 88 runs thus:
'The provisions of this Act shall have effect in respect of all suits, appeals or proceedings including proceedings in execution for ejectment of a non-agricultural tenant which are pending at the date of commencement of this Act.'
14. The Division Bench has considered the judgments of Das and Guha Roy, JJ. in Jadunath Das v. Mrinal Kanti Saha, (1954) 58 Cal WN 502; of S. R. Das Gupta and Mallick, JJ. in Panchu-moni Dassi v. Bhuban Mohan Mukherjee, (1955) 59 Cal WN 243; and of Guha Roy and Renupada Mukherjee, JJ. in Tarapada Biswas v. Mrityunjay Mukherjee in : AIR1958Cal313 . The Division Bench has noted that all the three previous Division Benches have ultimately agreed in holding that, for the application of the section to a particular case, in which a decree for ejectment was passed before the West Bengal Non-Agricultural Tenancy Act, 1949 and during the currency of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940, it was necessary that an execution proceeding should be actually pending at the date of coming into operation of the permanent Statute of 1949.
15. The ultimate conclusion, therefore, of all the three Division Benches which had previously construed Section 88 of the 1949 Act was the same; but P. N., Mukherjee, J. (sitting with Niyogi, J.) has pointed out that in Tarapada Biswas's case Renupada Mukherjee, J. was inclined to take a different view and concede a greater scope to the section by including within it cases also of decrees, passed before the permanent Act, for which no execution had been taken out before the new Act, possibly because of the currency of the earlier temporary Statute, and none was pending at the date of its coming into operation. P. N. Mukherjee, J. has expressed the view that 'having regard to the importance of the matter and certain new aspects which still need consideration, it is preeminently a case which, in the circumstances, should go before a Special Division Bench, so that the law on the point may be finally settled on a consideration of all relevant aspects of the matter.'
16. The Division Bench sent the case to the learned Chief Justice for an appropriate reference to a Special Division Bench under Proviso (ii) of Rule 1, Chapter II of the Appellate Side Rules.
17. On August 9, 1960, Lahiri, C. J. constituted a Special Division Bench consisting of Bachawat, Sinha and P. N. Mukherjee, JJ. The Special Division Bench heard the matter on the 17th, 18th and 19th August, 1960.
18. On Sept 15, 1960, the Special Division Bench passed the following order:--
'In this matter, we are unable to reach a unanimous decision. Accordingly under Rule 9 read with Rule 6 of Part II of Chapter VII of the Appellate Side Rules, we refer this matter to the Hon'ble the Chief Justice for constitution of a larger Bench.'
19. Rules 6 and 9 of Part II of Chapter VII of the Appellate Side Rules are as follows:--
'Rule 6. In making the reference to Full Bench under any of the above Rules 1 and 2, the referring Judges may recommend to the Chief Justice, if they think fit, that a Full Bench of five Judges be constituted.
Rule 9. For the purposes of the above Rules, a Bench of 3 or more Judges hereafter constituted by the Chief Justice under Rule 1 (ii) of Chapter II of these Rules shall be deemed to be a Full Bench,'
20. There were various other proceedings after September 15, 1960. Ultimately, on the 1st August, 1972, the present Full Bench was constituted by me. On the 10th August, 1972, we were informed that the appellant was dead. Steps for substitution of the heirs of the deceased appellant were then taken. We fixed the hearing on the 13th September 1977 by an order which we passed on August 31, 1977; but the parties on September 13, 1977, wanted time for filing the affidavit-in-opposition and the affidavit-in-reply. We again fixed the hearing on the 24th February, 1978. On that day it was represented to us on behalf of the respondents that the decree-holder's interest had vested in the State and it was no longer possible for the decree-holder to proceed with the execution case. This contention of the respondents, however, was not accepted by counsel for the appellants. The parties agreed to a procedure for adjudication of this particular dispute and we made the following order on February 24, 1978:--
'The matter is adjourned sine die.
'The matter will now go back to the learned single Judge for a decision as to whether the decree-holder's interest has vested in the State and as to whether the decree-holder in view of such vesting can proceed with the application for execution any further in Title Execution Case No. 48 of 1950 in the Third Court of the Munsif at Alipore (Lalji Agarwala Jain v. Sm. Kairunnessa Fakir Md. Sajan).
'After the matter is decided by the learned single Judge, liberty is given to the parties to mention this reference for further hearing. 'This order is made on the suggestions made by the learned Advocates appearing on both the sides.'
21. On March 21, 1978, I assigned the hearing of the dispute regarding vesting of the decree-holder's interest raised before us on Feb. 24, 1978 to B. C. Roy, J.
22. B. C. Roy, J. has delivered his Lordship's judgment on the 2nd May, 1978. His Lordship is of opinion that under the provisions of Section 6(1)(g) of the West Bengal Estates Acquisition Act, 1953, an intermediary is entitled to retain lands comprised in mills, factories or workshops even though he was not in Khas possession of the same at the date of vesting provided that there is no subsisting lease in respect of the said land on the date of vesting, The learned Judge has found that in the instant case there is no dispute that the registered lease on the basis of which the tenant was inducted into possession of the suit property expired long before the coming into operation of the West Bengal Estates Acquisition Act. The land in question has also been retained by the intermediary on submitting Return in Form 'B' pursuant to the Notice which the authorities had issued asking him to submit the Re-turn. The learned Judge has held that the decree-holder intermediary though not in actual possession of the land in question is entitled to retain the same in his Khas possession as the same is comprised in mill and workshop and the same has also been allowed to be retained as there was no lease subsisting in respect of the land immediately before the date of vesting. The execution proceeding for recovery of possession of the said land as well as the instant appeal arising out of it, B. C, Roy, J. has held, are maintainable at the instance of the decree-holder appellant. His Lordship has then directed that the case be placed before the Full Bench,
23. The correctness of the judgment of B. C. Roy, J. has been challenged before us by Mr. Ghosh appearing for the respondents. We are of opinion that it is not open to this Bench to sit in judgment on the decision, of B. C. Roy, J. in view of the said order which this Bench had passed on February 24, 1978 on the invitation of the parties. In any event, there was no inherent lack of jurisdiction so far as B. C. Roy, J. is concerned. If at all, it was a mere procedural irregularity. We have also gone through the judgment that the learned single Judge has delivered and we have found no reasons to differ from the conclusions he has reached.
24. Mr. Mitter, learned Counsel for the appellant, has submitted to us that the West Bengal Non-Agricultural Tenancy Act, 1949 is a prospective legislation except for purposes of Section 88 thereof, He concedes that if the said Act was applicable to the instant case, his clients would not be entitled to execute the decree for eviction in view of the provisions of Sections 7 and 9 of the Act. But his contention is that the provisions of the said Act cannot be attracted to the instant appeal inasmuch as no proceeding in execution for ejectment was pending at the date of commencement of the Act. In fact, between the 2nd July, 1946 and the 24th March, 1950, no execution petition was filed in any Court and the 1949 Act came into force on the 15th May, 1949 before steps for execution were launched.
25. The direct authority on this point is the Division Bench Judgment in Jadunath's case reported in (1954) 58 Cal WN 502. In that case it has been held explicitly by this Court that what the West Bengal Non-Agricultural Tenancy Act, 1949 contemplates is that the suits, appeals or proceedings referred to in Section 88 of the Act must be actually pending at the date when the Act comes into operation. Accordingly the mere fact that the decree for ejectment was passed on the 12th July, 1946 (Jadunath's case), could not be executed in view of the direction contained in, the judgment to the effect that there would be stay of execution of the decree till the life of the Bengal Non-Agricultural Tenancy Act X of 1940 does not connote that the execution of the decree was pending for the entire period during which the stay operated.
26. In our case also the High Court affirmed the decree for possession on the 2nd July, 1946; but at the same time made an order that the operation of the decree would remain stayed so long as the Temporary Act of 1940 continued in force. The temporary Act of 1940 was repealed by the permanent Act of 1949 on the 15th May, 1949, And the decree-holder filed the execution petition on the 24th March, 1950. On these facts it cannot be urged that execution of the decree was pending during the entire period of operation of the stay order and was also pending at the commencement of the 1949 Act.
27. The conclusions reached in this judgment of the Division Bench were followed, as we have already seen, in two other Division Bench judgments of this Court except that Renupada Mukherjee, J. was inclined to give a wider interpretation to Section 88 although he did not differ from Guha Roy, J. In this state of the law, it seems to us that, there is no scope for arguing propositions contrary to what has already been held by this Court. On the facts this case it cannot be said that either any suit or appeal or execution proceeding for ejectment was pending at the date of commencement of the 1949 Act to invoke the provisions of Section 88 of the said Act. The order for stay which the High Court had granted was a bar even to the initiation of any execution proceeding and the bar was removed only when the 1949 Act came into force.
28. Mr. Ghosh, learned Counsel for the respondents, has however, argued before us that West Bengal Non-Agricultural Tenancy Act, 1949 is a piece of welfare legislation. He read out to us the Statement of Objects and Reasons for the Bill which was moved in the West Bengal Legislative Assembly published in the Calcutta Gazette Extraordinary, of 1948, Pt. IV, page 342. The statement runs thus:--
'With the rapid growth of town population, there has been an insistent demand specifically since 1927 for a legislative measure regulating the rights and interest of non-agricultural tenants. At present the tenants in urban areas enjoy no statutory rights. Their present rights are only what may be embodied in a contract with the landlord. The provisions of the Transfer of Property Act afford them little protection against arbitrary eviction and enhancement of rent. To meet such a situation, the Government set up of a Committee of Enquiry in 1938 to investigate the existing rights and obligations of the non-agricultural tenants in the Province and to recommend necessary measures for safeguarding the interest of both the landlords and the tenants. The appointment of the Committee was a signal for a large scale eviction of tenants by the landlord. Matters came to a head and Government had to pass a Temporary Provisions Act in 1940, stopping, such evictions in Municipal Areas other than Calcutta. A comprehensive legislation regulating the rights of landlords and tenants in respect of non-agricultural lands was introduced in the last Session of the Bengal Legislative Assembly before the Partition of the Province and was passed by it after referring it to a Select Committee, But it could not become law as it was not considered and passed by the Bengal Legislative Council. 'The present Bill contains the same provisions as the previous Bill passed by the Assembly with some minor changes.'
29. Mr. Ghosh also relied on the preamble to the 1949 Act which said that this was 'An Act to make better provision relating to the law of landlord and tenant in respect of certain non-agricultural tenancies in West Bengal.'
30. Learned Advocates' point is that when the Court is construing the provisions of a welfare legislation, if two views are possible, the Court should adopt that view which helps the purpose of the Act. The temporary Act, says Mr. Ghosh, was passed to protect non-agricultural tenants. In Sections 7 and 9 of the permanent Act also protection to non-agricultural tenants has been specifically provided for. Mr. Ghosh drew our attention to decisions of English Courts which the Supreme Court has referred to in Asgarali v. State of Bombay, : 1957CriLJ605 . In this case the Supreme Court was construing the meaning of the word 'pending' in Sections 10 and 7 of the Criminal Law Amendment, 1952, The Supreme Court has said that a legal proceeding is 'pending' as soon as commenced and until it is concluded, that is so long as the Court having original cognisance of it can make an order on matters in issue, or to be dealt with therein. The Supreme Court has quoted the observations in this connection of Jessel, M. R. in re: Clagett's Estate; Fordham v. Clagett, (1882) 20 Ch D 637 at p. 653.
31. Mr. Ghosh wants us to extend the meaning of the word 'pending' in Section 88 of the said 1949 Act on principles indicated by the Supreme Court to give effect to the purpose of the Act.
32. In the instant case the judgment and order of this Court has been reported in 51 Cal WN 131 : (AIR 1948 Cal 45) (Gangjee Sajun & Co. v. Lalji Agarwala Jain). At p. 134 (of Cal WN): (at p. 47 of AIR) this Court has stated: 'Having regard to the view we have taken, we affirm the decision of the lower Appellate Court and direct that Court to stay the decree in so far as it relates to ejectment for the period during which the Act continues in force.'
33. This order was passed on the 2nd July, 1946. Therefore, from the 3rd July, 1946, to the 14th May, 1949, no Court could either entertain any application for or make an order for ejectment in the suit. From this point of view the principle which the Supreme Court had enunciated, Mr. Ghosh realised, could not be applied to the instant case. That is why, Mr. Ghosh said that notionally an execution proceeding was pending but it remained stayed. On this point of 'notional' pending Mr, Ghosh has cited a few authorities,
34. In Radha v Ballav v. Motilal Chanda, : AIR1951Cal569 , Roxburgh, J. has made certain observations with regard to Sub-section (5) of Section 18 of the West Bengal Premises Rent Control Act, 1950. This Sub-section is in these terms:
'In all applications made under Sub-section (1) of Section 18 of the said Act, which are pending at the commencement of this Act and in all suits referred to in Sub-section (5) of the said section which are pending at such commencement, the said Act as amended by this Act shall apply and shall be deemed always to have applied.'
35. In the case before Roxburgh, J. a suit for ejectment of a tenant on the ground that he was an ipso facto defaulter under Section 12 (3) of the West Bengal Premises Rent Control Act, 1948 was filed on July 29, 1949. During the pendency of the suit the West Bengal Premises Rent Control Act, 1950 came into force. In Section 2 (11) of this Act the definition of 'tenant' was changed. A tenant, it was said, included a person whose interest in the premises had been ipso facto determined under the provisions of subsection (3) of Section 12 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948. Section 18 (1) of the 1950 Act gave power to the Court to rescind or vary decrees and orders or to give relief in pending suits in certain cases. In the case before Roxburgh, J. the suit was decreed on August 31, 1950. The landlord obtained delivery of possession in execution of the decree on December 1, 1950. The West Bengal Premises Rent Control Act, 1950 came into force on the 30th November, 1950, changing, inter alia, the definition of tenant as already noted. An appeal against the decree for ejectment dated the 31st August, 1950, was filed on the 4th December, 1950, when the amending Act had already come into force. But it was held that as the landlord had recovered possession of the premises, relief under the amending Act could not be given. But Roxburgh, J. observed that the word 'pending' in Section 18 (5) of the amending Act should be liberally construed so as to include a case such as the present where although no actual appeal was pending when the amending Act came into force, an appeal was subsequently filed within limitation. Consequently, the appeal was to be disposed of on the basis that the law in force at the time when the decree was passed on 31-8-1950 was the law as it stood amended by the 1950 Act.
36. To our case these principles cannot be applied. Here, no execution proceeding could possible be pending at the date of commencement of the 1949 Act in view of the order for stay which we have quoted above. In other words, there was an impossibility in the eye of law of a pending execution proceeding for ejectment. This Court's order created an impediment to the pendency of such a proceeding which was overcome only when the 1949 Act, came into force.
37. The next case of Mr. Ghosh is reported in 45 Cal WN 859: (AIR 1942 Cal 121) (Suresh Chandra Mukherjee v. Lalit Mohan Chatterjee). Edgley, J. was considering the provisions of Section 2(22) and Section 36 of the Bengal Money Lenders Act, 1940. Sub-section (6) of Section 36 provides that:
'Notwithstanding anything contained in any law for the time being in force--(a) The Court which, in a suit to which this Act applies, passed a decree which was not fully satisfied by the first day of January, 1939, may exercise powers conferred by Sub-sections (1) and (2)
(i) In any proceedings in execution of such decree, or
(ii) On an application for review of such decree made within one year of the date of commencement of this Act, and the provisions of Rules 2 and 5 of Order XLVII of the first schedule to the Code of Civil Procedure, 1908, shall not apply to any such application.'
38. Before Edgley, J. a mortgage suit was instituted and a final decree was passed before the 1st January, 1939 but the decree had not been fully satisfied before that date. Edgley, J. has said that the proper procedure to follow in applying for relief in such cases would be to make an application in the execution proceeding, if any, is pending, or if no such execution proceeding is pending, to make an application for review. To such application for review the rules contained in Chapter XXXI of the Original Side Rules, Calcutta High Court, do not apply.
39. This is, therefore, a case in which Sub-section (6) of Section 36 makes an unsatisfied decree pending. Section 88 of the 1949 Act which we are now considering has made no such provision. Counsel for the respondents also relied on the case reported in. 46 Cal WN 33: (AIR 1942 Cal 153) (Saradindu Mukherjee v. Jahar Lall Agarwala) where the same sections of the Money Lenders Act have been construed similarly at pp. 51 and 52 (of Cal WN) : (at p. 166 of AIR). This is a Division Bench judgment and it is worthwhile quoting two paragraphs of this judgment at p. 52 (of Cal WN): (at p. 166 of AIR). These paragraphs are:
'It might still be contended that a suit could not be regarded as 'pending' after a decree had been finally passed therein, merely because the decree still remained to be satisfied. But it is precisely to meet such an argument, as It seems to us, that the legislature provided that suits in which unsatisfied decrees were outstanding on the 1st of January, 1939, should come within the scope of the Act. It is only reasonable to construe a Statute in a way which, if possible, would reconcile all its provisions. The interpretation we suggest would not only avoid repugnancy in the provisions of the Bengal Money-lenders Act, but give full effect to the object which the legislature appears to have had in view in enacting the legislation. 'The scheme of the Act is no doubt primarily to give reliefs in suits instituted on or after the 1st January, 1939, which is taken to be the material date irrespective of the date on which the Act actually came into operation, but at the same time, suits instituted before the 1st January, 1939, are definitely not excluded, as the definition itself will show. The latter category of suite would come within the description of suits 'pending on that date', the word 'pending' being for this purpose given an extended meaning so as not to be limited to suits in which no decrees have been passed, but also to include suits in which decrees have already been obtained, provided that such decrees were not fully satisfied by the 1st of January, 1939.'
40. It depends, therefore, entirely on the language in which the Statute is framed. An extended meaning to the word 'pending' can be given only when the language of the Statute justifies it. In the instant case the word 'pending' in Section 88 of the 1949 Act does not justify the inclusion of a proceeding in execution which could not be instituted at all owing to the stay order which the High Court had granted.
41. Mr, Ghosh lastly drew our attention to Brojendra Kishore v. Sk. Shamerali, 41 Cal WN 531: (AIR 1937 Cal 259). In this case it has been held that a guardian of a minor appointed in a suit continues to be the guardian of the minor in the execution proceeding until he dies or is removed. It is not necessary to have a fresh guardian appointed in the execution proceedings. And Section 141 of the Code of Civil procedure applies to execution proceedings.
42. On the basis of this judgment it is submitted to us that an execution proceeding is a proceeding in continuation. A suit is there and execution is the continuation of the suit. If the suit is pending because it is unsatisfied, execution must also be deemed to be pending,
43. This line of argument, in our opinion, would give a far-fetched meaning to the word 'pending' in Section 88 of the 1949 Act. Because it is a welfare legislation the Court should try to interpret its provisions liberally keeping in view the purpose for which it has been enacted; but liberal interpretation has its limitations. 'Proceedings in execution for ejectment' have been specifically referred to in Section 88. On the facts and in the circumstances of this case we cannot by any stretch of imagination hold that any proceeding in execution for ejectment was pending at the date of commencement of 1949 Act when even the initiation of such a proceeding was barred by the stay order passed by this Court on the 2nd July 1946. An extended meaning to the word 'pending' as suggested by Mr. Ghosh would make the expression 'including proceedings in execution for ejectment' in Section 88 redundant. The Supreme Court in Sevantilal v. Commr. of Income-tax (Central) Bombay, : 68ITR503(SC) , has said that it is a sound rule of interpretation that a Statute should be so construed as to prevent the mischief and to advance the remedy according to the true intention of the makers of the Statute. We shall be going against the true intention of the makers of the Statute if we extend the meaning of the word 'pending' in Section 88 of the West Bengal Non-Agricultural Tenancy Act, 1949 to a proceeding in execution for ejectment which could not be launched at all on the date of commencement of the Act in view of the order for stay that was passed on the 2nd July, 1946.
44. To our mind, the principle of beneficial construction on which the entire argument of counsel for the respondents was based, has no application at all to the facts and circumstances of this case.
45. We hold, therefore, that the application for execution which was filed on the 23rd March, 1950 (T. Ex. Case No. 48/1950) in the third Court of the Munsiff at Alipore is still maintainable and can be proceeded with,
46. In the result, this appeal is allowed. The judgment and order passed by the Second Additional Subordinate Judge, Alipore, in Misc. Appeal 137 of 1953 are set aside. The decree-holder would be at liberty to take further steps in T. Ex. Case No. 48/1950, in the Third Court of the Munsif at Alipore, in accordance with law. In the special facts and circumstances of this case each party will bear and pay its own cost of this appeal,
47. I agree.
48. I agree.
S.K. Datta, J.
49. I agree.
50. I agree.