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Tara Pada Biswas Vs. Mritunjoy Mukherjee and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.A.O. No. 138 of 1954
Judge
Reported inAIR1958Cal313,62CWN576
ActsTenancy Law; ;West Bengal Non-Agricultural Tenancy Act, 1949 - Sections 7, 9, 76 to 83 and 88; ;Bengal Non-agricultural Tenancy (Temporary Provisions) Act, 1940 - Section 3; ;Code of Civil Procedure (CPC) - Section 47
AppellantTara Pada Biswas
RespondentMritunjoy Mukherjee and ors.
Appellant AdvocateAtul Chandra Gupta and ;Benoy Bihari Sen, Advs.
Respondent AdvocateJitendra Kumar Sen Gupta and ;Amarendra Nath Gupta, Advs.
DispositionAppeal dismissed
Cases ReferredAstaram Bagdi v. Sitanath Mandal
Excerpt:
- guha ray, j. 1. this is a second appeal by tarapada biswas, the defendant in a suit for ejectment, from an appellate order disallowing his objection under section 47 of the code of civil procedure. 2. the facts which are not in dispute are briefly as follows. a suit for ejectment was filed against the present appellant, on the 8th june, 1940, after the commencement of the bengal non-agricultural tenancy (temporary provisions) act, 1940. that act came into force on the 30th may, 1940. there was a decree by the trial court on the 2nd january, 1941. the tenant defendant applied for stay of the execution of the decree for ejectment on the 15th january, 1941, under section 3 of the temporary act. although as yet no application was made for executing the decree a stay was ordered on the 21st.....
Judgment:

Guha Ray, J.

1. This is a second appeal by Tarapada Biswas, the defendant in a suit for ejectment, from an appellate order disallowing his objection under Section 47 of the Code of Civil Procedure.

2. The facts which are not in dispute are briefly as follows. A suit for ejectment was filed against the present appellant, on the 8th June, 1940, after the commencement of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940. That Act came into force on the 30th May, 1940. There was a decree by the Trial Court on the 2nd January, 1941. The tenant defendant applied for stay of the execution of the decree for ejectment on the 15th January, 1941, under Section 3 of the temporary Act. Although as yet no application was made for executing the decree a stay was ordered on the 21st January, 1941. The present appellant filed an appeal from the decree and that was dismissed on the 13th March, 1942. The decree-holder filed an application for executing the decree for costs on the 29th July, 1942. That execution was dismissed on full satisfaction on the 3rd April, 1943. On the 15th May, 1949, the West Bengal Non-Agricultural Tenancy Act, 1949, came into force. There was then an application on behalf of the decree-holder for vacating the stay order, and the stay order was vacated on the 3rd April, 1952. On the 3rd May, 1952, the execution case out of which this appeal arises was filed. On the 6th September, 1952, the judgment-debtor filed an objection under Section 47 of the Code of Civil Procedure saying that the execution could not proceed in view of Section 88 of the Act of 1949. The Trial Judge upheld that objection, but the appellate Judge on appeal by the decree-holder disallowed it. It is from that appellate order that the appellant now appeals.

3. The question for decision in this appeal is whether Section 88 of the Act of 1949 on a proper construction applies to the present case. A subsidiary but nonetheless Important question which arises is whether Section 88 on a proper construction makes available to the judgment-debtor in execution proceedings all the provisions of the Act of 1949 like Ss. 7 and 9.

4. I must confess at the very outset that Section 88 of the Act of 1949 is a somewhat difficult section to construe, and it has already been the subject matter of a number of decisions. Before dealing with the decisions, the terms of the section have to be examined. Section 88 runs as follows:

'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 the commencement of this Act.'

5. Dr. Gupta on behalf of the appellant argues, in the first place, that although no execution had been started at the date when the stay order was passed it must nevertheless be held that there was some proceeding before the Court which it stayed under Section 3 of the temporary Act of 1940. He next argues that if that was so the provisions of Section 88 apply to the facts of the present case. If Section 88 applies, Dr. Gupta further argues, that on a proper construction, it means that Section 7 or Section 9, as the case may be, will apply even in execution proceedings. The reason for this argument of Dr. Gupta is this: Unless such a broad construction is placed upon Section 88 a class of tenants who are not lucky enough to obtain a stay order while the suit or appeal against them was still pending when the Act of 1949 came into force, but who were unlucky enough to have the suitor the appeal disposed of before the commencement of the Act of 1949 would practically have no relief at all. It is undoubtedly true that even if Section 88 applies to a case where there was a decree before the commencement of the 1949 Act, the tenant can have relief only if the provisions like Section 7 or Section 9 of the Act of 1949 can be applied in the course of the execution or other proceedings and not otherwise. To that extent there is undoubtedly great force in the argument of Dr. Gupta, but then the whole question is whether fairly and reasonably we can put this liberal interpretation on the language of Section 88 of the Act of 1949.

6. The first question which arises on the arguments of Dr. Gupta is whether there was any proceeding pending at the date of the coming into force of the Act of 1949. Admittedly the decree was passed on the 2nd January, 1941, and admittedly also the appeal that had been filed by the present appellant against the decree was dismissed on the 13th March, 1942. At no stage was there an application for execution of the decree for ejectment, but as already stated, there was only an application for execution of the decree for costs which was dismissed on full satisfaction on the 3rd April, 1943. On the 15th January, 1941, when under Section 3 of the temporary Act of 1940 the appellant applied for stay of execution proceedings, admittedly there was no execution at all. Section 88 of the Act of 1949 uses the words, 'suits, appeals or proceedings', and proceedings, of course, include proceedings in execution, but then there may just as well be other classes of proceedings. The question is whether any proceeding was pending at the date when the Act of 1949 came into force. Dr. Gupta's argument is that as the suit was for ejectment of the defendant and as the defendant was not actually ejected, although a decree for ejectment had been passed, the proceedings started for the eviction of the defendant had not yet terminated so that something must be held to be pending at the date when the new Act came into force. I find it extremely difficult to accept this line of reasoning for the simple reason that the words 'suits', 'appeals' and proceedings' have all been used in the section. The word 'proceeding' is undoubtedly used in a double sense. In one sense it is used to mean whatever in a Court of law leads to any action on the part of the Court, either in favour of a party or against a party, and in that generic, sense, it includes suits, appeals and all kinds of proceedings in Court. In the other sense, it excludes suits and appeals which are separately provided for in the Code of Civil Procedure.

A suit after all is one stage of a proceeding for obtaining a certain kind of relief and that stage is initiated by a plaint. That stage is completed by a decree. An appeal represents the next stage. Of course, during the pendency of a suit, or even after the termination of a suit various other proceedings may arise, and those alone are sought to be covered by this second meaning of the word proceedings, and when all the words, 'suits,' 'appeals' and 'proceedings' have been used, it seems to be quite obvious that the word 'proceedings' could not have been used in Section 88 in a generic sense in which it covers suits, appeals and all other kinds of proceedings. When, therefore, the suit ended in a decree, and there was no other proceeding initiated by the decree-holder or even by the judgment-debtor, there was nothing pending before the Court, the suit having terminated in a decree. In that view of thematter, Section 88 would not be applicable to the facts of this case, because there was no proceeding at all pending before the Court at the time when the new Act of 1949 came into force. This view was taken in Jadunath Das v. Mrinal Kanti Saha, 58 Cal WN 502 (A). To this decision I happened to be a party. This was followed in Panchumani Dassi v. Bhuban Mohan, 59 Cal WN 243 (B).

7. In the case reported in 58 Cal WN 502 (A), the decree for ejectment was passed on 12-7-1946, and the judgment itself contained a provision for stay of the execution of the decree during the life of the Bengal Non-Agricultural Tenancy Act of 1940. On 26-11-1949, after the Act of 1949 had come into force on 15-5-1949, the decree-holder filed an application for execution. In the Courts below the judgment-debtor claimed protection from ejectment under Section 7 of the Act of 1949 and the Courts below held that the judgment-debtor was not entitled to such protection and it was argued before the High Court that the judgment-debtor was entitled to protection under Section 9 (1) (c) of the Act of 1949. It was further contended that the execution proceeding must be deemed to have been pending because of the prohibition contained in the decree for ejectment staying execution of the decree for life of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940, though no prior execution was levied. Das J., in delivering judgment observed as follows :

'The mere fact that the decree for ejectment passed on 12-7-1S46, could not be executed during the above period does not connote that the execution of the decree was pending for the entire period during which the stay operated. What the Act contemplates is that the suits, appeals or proceedings referred to in Section 88 must be actually pending at the date when the Act comes into operation. In our opinion, it cannot be said that a proceeding for execution of the decree was pending on 15-5-1949, when the Act came into operation.'

The facts of this case are all on fours with the facts of the present case, and there is no reason whatever why a different view should be taken here as to the question whether there was a proceeding pending or not. It is true that in Jadunath's case (A), Das J., spoke only of proceedings in execution presumably because the argument on behalf of the appellant and the facts of the case referred only to such proceedings and to no other, but as Section 88 stands, if any kind of proceeding for ejectment of a non-agricultural tenant were pending at the date of the commencement of the Act Section 88 would be attracted. But in this case, as I have already found, nothing was pending at the date when the Act of 1949 came into force. The stay order under Section 3 of the temporary Act of 1940 was merely an anticipatory order, vis., an order preventing the filing of an application for execution. Whether such an order could be passed legally or not under that section is another matter with which we are not concerned. The question that directly arises in this case is whether the mere fact that such an order had been made means actually that there was a proceeding before the Court. As I have taken the view that there was no proceeding pending at the date of the commencement of the Act of 1949, Section 88 is not attracted to this case.

8. I have already referred to Dr. Gupta's argument that if this view be accepted it means that if there was an application for executionpending at the date of the commencement of this Act, the tenant would be entitled to reliefs under the Act, whereas if there was no such application pending at that date no relief at all would be available to him, and that there is no reason at all why there should be such a discrimination between the same kind of tenants On the simple ground that in one case there was an execution case pending and in the other there was none pending, it is difficult really to assign any explanation for this discrimination, but even if an execution case were pending at the date when the Act of 1949 came into force no relief would be actually available to the tenant unless the provisions of Section 7 or Section 9, as the case may be, can be applied even in execution proceedings by re-opening the decree passed. This takes me to the second branch of Dr. Gupta's argument viz., that Section 88 on a Proper construction means that all the provisions of the Act meant to give relief to the tenants would be applicable not merely in suits and appeals, but also in all proceedings, including proceedings in execution, i. e., even though a decree might have been passed long before the new Act came into force, it would be, open to a Court executing the decree, provided that an execution case is pending at the date of the commencement of the Act, to reopen that decree and to apply the provisions of Section 7 or Section 9, as the case may be, and then to pass such orders as may be just and proper. The view taken by the Trial Court, of course, was that Section 88 made available to the appellant all the provisions of the new Act, and the Lower Appellate Court while it disagreed with the view of the Trial Court that there was a pending execution which attracted the provisions of Section 88 agreed with the view that if Section 88 were applicable at all, it would make available to the appellant, even in an execution proceeding, all the provisions of the new Act, including Sections 7 and 9.

9. As I have said before, Section 88 of the Act of 1949 has been very unhappily drafted. While it says that the provisions of this Act shall have effect in respect of all pending suits and proceedings, it does not say how any particular provision will have effect in any particular type of proceedings. As far as suits and appeals are concerned, there is hardly any difficulty, because in suits and appeals, the substantive rights of the parties are under investigation, and if at the date of the commencement of the new Act a suit Or appeal was pending then in that suit or appeal, under the terms of Section 88, the provisions of the new Act, viz., Section 7 and Section 9 could be quite legally made use of. But if a suit has ended in a decree and if the appellate Court has confirmed that decree, then the question arises whether the decree could under the terms of Section 88 be reopened and its validity examined in the light of the provisions of the new Act. It is difficult on the terms of the section to go so far. Normally the substantive rights of the parties are fully investigated in the suit and then in the appeal, and what the executing Court has to do is merely to enforce the decree; unless the decree is on the face of it a nullity, or unless there is a bar to its execution, the executing Court has to give effect to the decree and has no option in the matter. It cannot go behind the decree. To say that the executing Court is entitled to re-examine the validity of the decree is really to nullify it or to take away the right which the decree-holder has obtained as a result of that decree. The question is whether Section 88, as it stands, admits of that construction and that that was in effect Intended by the Legislature. In my opinion, as the section stands, it is difficult to go so far, and all that can be said is that as far as proceedings in execution are concerned, only such provisions of the new Act will be applicable as are applicable in execution only as per example, Sections 76-83. The question of the liability of the tenant to ejectment which is established at the trial and then confirmed on appeal cannot be again gone into by the executing Court in the absence of any express provision in the section to that effect. It is difficult to say that the section, as it stands, really intends the result that the executing Court would be entitled to re-examine the validity of the decree in the light of the provisions of the new Act, because there is nothing in the section from which such an intention can be inferred.

10. In support of this view there is the decision of a Division Bench of this Court in Astaram Bagdi v. Sitanath Mandal, 60 Cal WN 109 (C). In that case Das Gupta J., has carefully examined the relevant provisions of the Act and come to the conclusion that the words 'shall not be ejected' and the words 'shall be liable to ejectment' have no reference to ejectment in execution proceedings, but refer only to the liability of a decree for ejectment being passed against the tenant. In this connection reference is also made to 59 Cal WN 243 (B), where it has been held that Section 7 and Section 9 are intended to give protection to certain classes of tenants in respect of suits to be filed in the future, i. e. after the commencement of the Act of 1949, but Section 88 introduces an exception by extending that protection also to suits, appeals and proceedings, including proceedings in execution which were pending at the date when the Act came into force. This decision does not in so many words say to what extent the provisions of the Act shall have effect in respect of proceedings in execution, and on that point the case reported in 60 Cal WN 109 (C) (supra) has taken a decided view.

11. In considering Section 88 of the Act of 1949, one has necessarily to read the expression 'as far as may be' after the expression 'shall have effect' and before the expression 'in respect of' etc., because it is at once obvious that all the provisions of this Act cannot apply to all classes of proceedings. Even in suits and appeals only some provisions, including Section 7 and Section 9, will apply. If the words 'as far as may be' have to be read into the section, as, in my opinion, they must be, if a rational construction is to be put on its terms then it becomes obvious that in proceedings in execution only such provisions of the Act will be applicable as have any bearing on the execution of the decree which was perfectly valid at the time when it was passed and which cannot be interfered with unless a point of interfering with it has been unequivocally conferred by the statute.

12. The anomaly pointed out by Dr. Gupta, viz.. that if there has been a decree before the commencement of the Act, the tenants will have practically no relief is undoubtedly there, and Dr. Gupta pertinently enquires why then the Legislature took the trouble of providing for a stay of the proceedings by Section 3 of the temporary Act. The only answer to this that can be attempted is that probably the Legislature thought that where decrees had already been passed the tenants would be given some relief if for a number of years the proceedings for ejectment were only stayed, but where the suits had not ended in decrees or where the appeals were still pendingmore substantial relief was possible for the tenants, and probably that is what the Legislature set out to do. In this view, I respectfully agree with the construction put by a Division Bench in 60 Cal WN 109 (C).

13. Dr. Gupta in this connection touchedupon another point without pressing it. It is this that Section 3 of the temporary Act of 1940 provides that every suit and Proceeding in any Court for ejectment of non-agricultural tenant, other than a suit or proceeding for ejectment on account of non-payment of rent by such tenant shall be stayed for the period during which this Act continues in force. There is a proviso to the effect that every proceeding for delivery of possession in execution of a decree for ejectment on account of non-payment of rent shall be stayed if, within thirty days from the date of the decree, such tenant deposits into Court the amount of the decree together with the costs of the proceeding.

14. In the present case, whether it was a suit for ejectment of a non-agricultural tenant on account of non-payment of rent or not we do not know. This much, however, appears from the judgment of the Lower Appellate Court that the execution was ultimately stayed under the proviso to Section 3 of the Act of 1940. This fact as well as the fact that neither during the suit nor during the appeal any attempt was made to have the proceedings stayed would go to indicate that the suit was probably a suit for ejectment of a non-agricultural tenant on account of non-payment of rent. That being so, there was no obligation on the Court to stay further proceedings in suit. The decree, therefore that was passed could not be held to be a nullity on the face of it. It has been held in 59 Cal WN 243 (B), that even if a decree was passed in a suit for ejectment of a non-agricultural tenant, other than in a suit or a proceeding for eviction of a tenant on account of non-payment of rent, in violation of the provisions of the main body of Section 3 of the temporary Act of 1940, such a decree would not be a nullity, though it would be a bad decree liable to be set aside on appeal. In that view it cannot be said that the decree passed was a nullity so as to entitle the executing Court to refuse to execute it.

15. In the view I have taken this appeal must be dismissed with costs.

Renupada Mukherjee, J.

16. I agree with the order made by my learned brother that this appeal should be dismissed but this agreement is recorded under circumstances which are somewhat peculiar. It would appear from the exhaustive judgment delivered by my learned brother that two questions, which are purely questions of law, have arisen for our consideration in this appeal. Both these questions are covered by earlier decisions of some Division Benches of this Court. My learned brother has accepted and followed the earlier decisions and has passed an order for dismissal of the appeal. Unfortunately, I cannot agree with the views expressed by my learned brother on either of the two questions of law formulated in the judgment, nor am I in a position to accept the earlier decisions to be correct. Personally, I would have preferred to refer the matter for consideration of a larger Bench. Since, however, my learned brother is not inclined to do so, I am bound by the earlier decisions of the Division Benches of this Court, with reference to which I stand in the position of a single Judge, and Icannot requisition the formation of a larger Bench for consideration of the matters in dispute. In fairness to myself, however, I shall briefly state the reason why I am not in a position to share the views expressed by my learned brother.

17. The facts out of which the present appeal has arisen have been exhaustively dealt with in the judgment of my learned brother, and it is not necessary to recapitulate them in my judgment.

18. One of the questions raised in this appeal is whether a suit in which a decree was passed at a time when the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940, was in operation and in connection with which no application for execution was made, would be regarded as a pending proceeding within the meaning of Section 88 of the West Bengal Non-Agricultural Tenancy Act, 1949. This question appears to be covered by the decision of a Division Bench reported in 58 Cal WN 502 (A), where Das J., and my learned brother held that the provisions of Section 88 of the West Bengal Non-Agricultural Tenancy Act, 1949, dtd not apply to such a case. Das J., who delivered the judgment observed.

'The mere fact that the decree for ejectment passed on 12-7-1946, could not be executed during the above period (i. e., till the life of the Bengal Non-Agricultural Tenancy Act of 1940) does not connote that the execution of the decree was pending for the entire period during which the stay operated. What the Act contemplates is that suits, appeals or proceedings referred to in Section 88 must be actually pending at the date when the Act comes into operation. In our opinion, it cannot be said that a proceeding for execution of the decree was pending on 15-5-1949, when the Act came into operation.'

This decision has been cited with approval in a later case reported in 59 Cal WN 243 (B).

19. Dr. Gupta appearing on behalf of the appellant in this appeal challenged the correctness of the above decisions. He submitted that the decisions, if accepted, as correct, would lead to strange and incongruous results inasmuch as a non-agricultural tenant would get the benefit of Section 88 of the Act of 1949, if the decree-holder had started an execution proceeding during the period when the temporary Act of 1940 was in operation, whereas another tenant against whom no such execution had been started would be deprived of this protection. Dr. Gupta contended that delivery of possession having been stayed in both the cases and the application for execution, if failed, being completely innocuous during the continuance of the Act of 1940, the Legislature could not have intended to withhold the benefit of Section 88 of the Act of 1949 from a tenant against whom no application for execution had been actually filed. Dr. Gupta further submitted that there would be no sense in making any discrimination between the two classes of tenants mentioned above. The reasoning given by Dr. Gupta in support of his argument appears to be perfectly sound although the actual wording of Section 88 of the Act of 1949 appears at first sight to be somewhat against him. I advisedly use the expression 'at first sight', because in my opinion, the section ultimately lends support to the contention advanced by Dr. Gupta. Section 88 of the Act of 1949 runs in the following terms:

'The provisions of this Act shall have effect in respect of all suits, appeals or proceedings including proceedings in execution for ejectment ofa non-agricultural tenant which are pending at the date of the commencement of this Act.'

It would appear that the scope of the section, so far as the word 'proceedings' is concerned, is not confined to execution proceedings only as has been observed in the case reported in 58 Cal WN 502 (A) (supra), but the section has been made applicable to all proceedings without any exception.

20. Now a suit for khas possession instituted by a landlord for ejectment of a tenant can and should be regarded both as a suit and a proceeding, it should be regarded as a suit proper till the decree is passed. Thereafter it should be regarded as a proceeding until the landlord gets his desired remedy by getting delivery of possession of the tenanted property, in the present case, the decree was passed on 2-1-1941, and delivery of possession was stayed thereafter by an order passed by the Trial Court on 21-1-1941. There can, therefore be no room for doubt that though no formal application for execution was filed by the decree-holder, the proceeding with regard to delivery of possession remained undisposed of in consequence of the stay order passed by the Court. Were it not so, the stay order passed by the Court would have been completely meaningless. In this connection I may usefully refer to Section 3 of the Act of 1940:

'Notwithstanding anything contained in any other law for the time being in force, every suit and proceeding in any Court for ejectment of a non-agricultural tenant, other than a suit or proceeding for ejectment on account of the non-payment of rent by such tenant, shall be stayed for the period during which this Act continues in force: Provided that every proceeding for delivery of possession in execution of a decree for ejectment on account of the non-payment of rent by such tenant shall be stayed if, within thirty days from the date of the decree, such tenant deposits into Court the amount of the decree together with costs of the proceeding.'

The first part of the section deals generally with the staying of suits and proceedings for ejectment of a non-agricultural tenant. The proviso deals with a particular type of ejectment.

21. Now, if a Court passes an order of stay after the passing of the decree, the stay order, in order that it may mean something sensible must refer to the stay of the suit or proceeding as such. An order for stay was passed in the present case after the passing of the decree. It cannot be properly said that the suit was stayed. In my opinion, what was stayed in the present case was the proceeding for delivery of possession which would have followed upon the passing of the decree, but for the operation of the stay order. That being the case, something which was the most vital part of the landlord's claim remained undisposed of till the Act of 1949 came into operation. In these circumstances, it must be held that the proceeding relating to delivery of possession remained pending at the date of the commencement of the Act of 1949. In my opinion, the provisions of Section 88 of the Act of 1949 have got application to the facts of the present case. I, therefore, respectfully differ from the view taken by the learned Judges in the cases reported in 58 Cal WN 502 (A) and 59 Cal WN 243 (B) (Supra), although I am bound by the practice and procedure of this Court to accept) those decisions as correct

22. I now come to the second question raised in this appeal. In view of what I have already stated regarding the first point raised in this appeal, it is not necessary to give my views on the other question, but since I am now functioning as one of the Judges of the Division Bench and since I am unable to accept my learned brother's views on the other question, I should in fairness indicate my reasons for this difference.

23. The second Question which has been raised in this appeal is whether the Judgment-debtor could have been given any relief in the execution proceeding assuming that Section 88 of the Act of 1949 was applicable to the facts of the present case. My learned brother is of opinion that since a decree has already been passed against the appellant, the Court cannot touch or reopen that decree in the absence of any express provision in Section 88 or in any other section of the Act of 1949. With great deference to my learned brother I am unable to accept this interpretation of Section 88 made by him. The section says without any reservation that all the provisions of the Act of 1949 shall have effect in respect of all suits, appeals or proceedings including proceedings in execution, provided such suits, appeals or proceedings were pending at the date of the commencement of this Act. The provisions of the Act of 1949 were not certainly on the statute book when the proceeding with which we are concerned was stayed in January, 1941. There would be no sense in extending the provisions of the Act of 1949 to earlier suits, appeals or proceedings if the tenant was not given all the benefits of the Act of 1949, including the benefits of Sections 7 and 9 of the Act. Of course, it has been held in a case reported in 60 Cal WN 109 (C), that the words 'liable to ejectment' in Section 9 of the Act of 1949 have no reference to ejectment In execution proceedings, but refer only to the liability of a decree for ejectment being passed against the tenant. This decision purports to follow an earlier decision already mentioned by me, viz., the decision reported in 59 Cal WN 243 (B) (supra).

24. Dr. Gupta contended before us that the case reported in 59 Cal WN 243 (B) has not been properly interpreted in the case reported in 60 Cal WN 109 (C). A portion of the earlier judgment has been quoted with approval in the case reported in 60 Cal WN 109 (C), but another portion wherein it has been stated that Section 88 of the Act of 1949 is an exception to the general proposition that Sections 7 and 9 of the Act have application only to suits instituted after the commencement of the Act of 1949 and that the right given to a tenant under Section 7 has been extended also to suits, appeals and proceedings, including proceedings in execution, by Section 88 does not appear to have been noticed in the later case. That portion lends support to Dr. Gupta's argument that in cases where Section 88 of the Act of 1949 would apply, the benefits of Sections 7 and 9 of the Act would be available to the tenant whether a decree was or was not passed against him. Were it not so, the benefit given to a tenant would remain illusory in many cases. This question may come up in future for the consideration of a larger Bench, and it is not necessary for me to pursue this question further, because so far as the present appeal is concerned, the appellant cannot get any remedy.

25. In conclusion, therefore, without agreeing with the reasons given by my learned brother for dismissal of the appeal. I agree withhim in making the final order that the presentappeal be dismissed with costs.


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