Salil Kumar Datta, J.
1. This rule was obtained by the tenant defendant against Order No. 47, dated July 15, 1970 passed by the trial court rejecting his application under Section 17D (1) of West Bengal Premises Tenancy Act, 1956, as not maintainable.
2. The point for determination in this rule is the interpretation of the word 'decree' in Section 17D of the Act. This section, a new section, was inserted in the Act, with retrospective effect, by Section 5 of the West Bengal Premises Tenancy (Second Amendment) Act, 1969 (West Bengal Act XXXIV of 1969) hereinafter referred to as 1969 Act. Sub-section (1) provided as follows:
'17D (1) 'Where before the commencement of the West Bengal Premises Tenancy (Amendment) Act, 1968, (President's Act 4 of 1968), 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. (West Bengal Act XVII of 1950), by reason only of Clause (i) of the proviso to Sub-section (1) of Section 12 of that Act, but the possession of such premises had not been recovered from thetenant 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.
Explanation-- where the decree was passed in the exercise of appellate jurisdiction, an application under this Sub-section shall be made to the Court of first instance.'
3. Under Sub-section (2), on such application being made, all proceedings in execution of the decree are to remain stayed pending its disposal. in Sub-section (3) provision has been made, on such application, for determination of rent by court on hearing such evidence as may be adduced by the parties, in case of decree under 1956 Act, the total amount the tenant was liable to deposit or pay under Sub-section (1) or (2) of Section 17 during the period ending with the date of the decree after giving credit for deposits or payment under above provisions and in case of decree under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (hereinafter referred to as 1950 Act) the total amount the tenant was liable to deposit on account of rent including arrears of rent for the period ending with the date of the decree had an order under Section 14 (4) was made, after giving credit of every deposit made by the tenant during the period, and, in either case, the total amount from the date of the decree till the date of the order calculated on the basis of the monthly sum equivalent to the rent last paid the tenant was liable to pay after giving credit to the tenant of all such sums paid or deposited with Rent Controller or in Court or to the landlord for such period. On such determination, the Court is to direct the tenant by order to deposit the said amounts and cost as may be awarded within a period not exceeding sixty days. Sub-section (4) provides that if the tenant deposits the amounts as directed, the Court shall allow the application under Sub-section (1), set aside the decree for recovery of possession and dismiss the suit. in Sub-section (5), it is provided that if the tenant fails to deposit the amount as may be directed by the Court in pursuance of above provisions, his application under Sub-section (1) shall be dismissed.
4. In the background of the above provisions, we shall consider the present case. The facts, shorn of unnecessary details, would clearly emerge from the dates of events in the course of the proceedings as stated below:
19-5-53 -- Suit for ejectment instituted on ground of default.
24-11-58 -- Suit decreed by trial court.
12-4-67 -- Appeal by tenants dismissed by the lower appellate court.
31-5-67 -- Decree put in execution.
26-8-67 -- President's Act 4 of 1968 comes into force.
26-3-68 -- President's Act 4 published in Calcutta Gazette.
8-1-69 -- Appeal dismissed by High Court.
14-11-69 -- West Bengal Premises Tenancy (Second Amendment) Act came into force.
12-1-70 -- Petition under Section 17D (1) filed by tenant.
5. There is no dispute that the application under Section 17D (1) was filed within the prescribed time limit of sixty days from November 14, 1969. According to Mr. Pramatha Nath Mitra, the learned counsel for the tenant petitioner, the word 'decree' in the section means the decree which was passed by the trial court as that is the decree which is executable in law. If, however, the trial court does not pass the decree prayed for in the plaint, but such decree is passed by any appellate court, the word 'decree' would mean such decree passed by the appellate court which would then be the executable decree. In support Section 37 of the Code of Civil Procedure was referred to, in which under Clause (a), if the decree to be executed was passed in the exercise of appellate jurisdiction, such decree is to be deemed to be decree of the court of first instance for purpose of execution. The provisions made by Section 17D, according to Mr. Mitra, follows similar provisions of the Code and should be interpreted as such and the decree mentioned in Sub-section (1) thus means an executable decree as existing on the date the West Bengal Premises Tenancy (Amendment) Act, 1968 President's Act IV of 1968, (hereinafter referred to as 1968 Act) came into force whether such decree is passed by the court of first instance or the court exercising appellate jurisdiction. In the latter case, under provisions of Section 37 of the Code, such decree is to be deemed to be the decree passed by the Court of first instance.
6. Mr. Mitra drew my attention to provisions of Order 41, Rule 5 of the Code which, in terms, provides that an appeal shall not operate as a stay of operation of the decree. This section provides that a decree, though under appeal, continues to be a valid and operative decree. Mr. Mitra referred to the decision in Juscurn Boid v. Pirthichand, AIR 1918 PC 151 in which it was observed that, under the Indian Law and procedure, an original decree is not suspended by the presentation of an appeal, nor is its operation interrupted where the decree on appeal is one of dismissal. Reliance was also placed on the decision in State of Uttar Pradesh v. Md. Nooh. AIR1958 SC 86 at p. 95 in which it was observed-
'The filing of the appeal or revision may put the decree or order in jeopardy, but until it is reversed or modified, it remains effective'.
7. Mr. Mitra, on the above authorities, contended that there could not be any doubt that the word 'decree' in Section 17D means a decree capable of execution. In fact, in the present case, the trial court's decree for eviction is the decree that could be and has been put to execution and not the decree of the first appellate court which simply dismissed the tenant's appeal. Mr. Mitra also referred to provisions of Rule 11, Order 21 of the Code, wherein under Clause (c), the date of the decree is to be set out in the petition for execution which implies the decree passed by the court of first instance or by court in exercise of appellate jurisdiction while under Clause (d) following, it has to be mentioned whether any appeal has been preferred from the decree under execution. The Form No. 6 in Appendix E also provides for the original decree as the decree capable of execution, unless modified by the appellate court, subject always to the provisions of Section 37.
8. Mr. Manindra Nath Ghosh, the learned Advocate for the decree-holder opposite party, has contended, on the other hand, that the word 'decree' in Section 17D should be interpreted in the same sense in all its Sub-sections. 'Decree' in the Sub-section means the decree of such appellate court as may have passed the decree finally in which the decrees of the subordinate courts merge and the decree of the appellate court is really the operative and effective decree. Reliance was placed in support on the decision of the Collector of Customs v. East India Commercial Co. Ltd., : 2SCR563 in which it was observed as follows:
'In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority, whether it has reversed the original order or modified it or confirmed it. In law, the appellate order of confirmation is quite as efficacious as an operative order as an appellate order of reversal or modification.'
It was further observed that
'...... that the appellate order is theoperative order after the appeal is disposed of ... Is ... the basis of the rule that the decree of the lower court merges in the decree of the appellate court.'
in Somnath Sahu v. State of Orissa. 1969-3 SCC 384, the principle was reiterated in the following terms:
'In law the position would be just the same even if the appellate decision merely confirms the decision of the Tribunal. As a result of the confirmation or affirmance of the decision of the Tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which is subsisting and is operative and capable of enforcement.'
in Shankar Ramchandra v. Krishnaji, : 1SCR322 , the principle was extended to orders passed in revision by the High Court and the order of the appellate court was thereby held to have been merged with the order in revision.
9. On the above authorities Mr. Ghosh contended that the decree of the courts below 'merged in the decree of the High Court, which, as we have seen, was passed after the date the President's Act 4 of 1968 came into force and, in view of the provisions of Sub-section (1) of Section 17D, was unaffected by it. Further, under Sub-section (4) on compliance of the orders of the court, the court is to allow the application under Section 17D (1) and set aside the decree for the recovery of possession passed in the suit and dismiss the suit. If the court sets aside the decree of the lower court as contended while the decree passed by the High Court is left untouched, the position would be that the decree of the High Court will remain and continue to remain valid and operative and capable of execution. This would lead to a situation not contemplated in law and will not afford the benefit to the tenant intended by the amendment. Mr. Ghosh further contended that Rule 5, Order 41 contemplated a stage prior to the disposal of the appeal while Rule 11, Order 21 is concerned with execution and the same does not militate against the principles laid down in the above authorities.
10. Mr. Mitra's rejoinder was that the rule of merger is not an inflexible or rigid rule of law as was observed by the Supreme Court in the State of Madras v. Madurai Mills Co. Ltd., : 1SCR732 in the following language:
',..... the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior Tribunal and the other by a superior Tribunal, passed in an appeal or revision, there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. In our opinion the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction.'
11. Section 17D in Sub-section (1) provides for the filing of an application to set aside a decree for recovery of possession, passed on the ground of default either under the 1956 Act or 1950 Act, provided possession of such premises has not been taken in the execution of such decree. A decree for possession could be passed, under the said Acts, either by the court of the first instance or by a court in exercise of appellate jurisdiction. Assuming that such a decree is passed by either of the courts referred to above, it would be an executable decree by its own force immediately on the passing of such decree. Any appeal preferred from such decree, would not by itself mean a stay of its execution unless otherwise ordered by the court in which such appeal has been filed. And as was held in cases of Juscurn Boid and Md. Nooh, (supra) the decree passed by a court remains effective and is operation is not interrupted where the decree in the appeal is one of dismissal.
12. The question then arises is about the effect of the decree that may be passed in the appeal. The authorities referred to by Mr. Ghosh have laid down the proposition that the decision of appellate court alone is the subsisting and operative decision and the decree of the lower court merges in the decree of the appellate court. It may be noted here that the cases referred by Mr. Ghosh were concerned with the territorial jurisdiction of the High Court where the original authority is within such territorial jurisdiction while the appellate authority is not and in such cases it was held that the effective and operative order is of the appellate authority in which the original order merged and the High Court is not in position to issue writs against the orders of the original authority if the appellate authority is outside its territorial jurisdiction, under Article 226 as it stood before its amendment, though such appellate authority may merely confirm the order under appeal before it. In the case of Somnath, 1969-3 SCR 384 (supra) the petitioner challenged the order of dismissal by his employer which was affirmed by the State Government under certain statutory rules. The Supreme Court observed that the order of dismissal by the employer could not be challenged as it merged in the appellate order of the Government, which, again, was not shown to be defective. In such cases the courts laid down the proposition that if any order in any proceeding is to be challenged, it must be the final order which is passed ultimately by an appellate or re-visional authority in which the earlier orders of the original or the subordinate appellate or revisional authority merge.
13. It was pointed out in the Madurai Mill's case, : 1SCR732 (supra) that the doctrine of merger is not a doctrine of rigid and universal application. In cases where a trial or lowerappellate court's decree is put to execution, and the superior appellate court merely dismisses the appeal, the execution, which shall always be on the basis of the original decree under appeal, will not be ineffective or infructuous; on the contrary the execution of the decree under appeal would proceed with full force as an effective and operative decree unless its proceedings were stayed during appeal and such decree could be put to execution even after the disposal of the appeal. In fact, the above proposition is supported by the provisions relating to execution in Order 21, Rule 11 of the Code, which provides for one column for the decree to be executed and another column as to whether any appeal has been preferred from the decree. On the authority of the above decisions and in view of the provisions of the 1956 Act and the Code relating to execution, I am of opinion that in cases where the appellate court merely dismisses the appeal, the principle of merger can have no application in cases of execution of the original decree except as to limitation and will not affect an executable decree passed by an inferior court, in so far as its execution is concerned. The position would be otherwise if the decree is modified or varied by such appellate authority as, in such event, the original decree will be inexecutable. In Ratanmala v. Gopal Lal, : AIR1955Cal14 , it was observed that the court has applied the theory of merger in two classes of cases viz., for the purpose of determining the point of time when limitation would run and for the purpose of amendment of decrees. The decision in Kutti Nadar v. Swami Kutty Nadar, 1966-2 Mad LJ 575 relied on by Mr. Ghosh, is also on question of limitation as to execution of an appellate decree dismissing the appeal.
14. Mr. Ghosh's further contention is that the word 'decree' in Sub-section (4), if the above interpretation is accepted would result in anomaly as the appellate decree would be allowed to remain in full force and effect in view of its being passed after the material date while the decree under execution passed by any of the lower courts having jurisdiction, either original or appellate, is set aside. The court in this section under its provisions means the court of the first instance and such court is given powers not only to set aside the decree but also to dismiss the suit which is to follow as a matter of course. In case where the appellate decree dismisses the appeal against the decree for recovery of possession, such decree would be infructuous, as contended by Mr. Mitra, in view of the dismissal of the suit itself. I am accordingly unable to hold that there would be any anomaly as contended by the landlord decree-holder.
15. This court in the connected Second Appeal No. 1255 of 1967, against the appellate decree of dismissal of the tenant's appeal thereby affirming the decree of the court of the first instance, passed the following decree on January, 8, 1969:
'It is ordered and decreed that the decree of the court of appeal below be and the same is hereby affirmed and this appeal dismissed subject to this that the defendant appellant, having duly filed the stipulated undertaking, through his learned Advocate, is allowed time till the end of January, 1970 for vacating the disputed premises and delivering up quiet and peaceable possession thereof to the decree-holder respondent on condition that the said defendant appellant deposits in the trial court, to the credit of the decree-holder respondent, within two months from this date, the outstanding arrears, if any, on account of rents or mesne profits, as the case may be, and also goes on depositing, in the same court to the same credit, month by month, regularly, according to the English calendar, within the 15th of the next succeeding month according to the same calendar, a sum of Rs. 175/- (Rupees one hundred and seventy-five) per month, on account of current rents or mesne profits;
And it is further ordered that in the event of the said defendant's failure to make any of the above deposits, this decree shall become executable at once.'
16. This decree, in all material particulars, thus is a decree of dismissal of the appeal, though some time was given to the tenant for delivery of possession on certain terms and undertaking. It may be noted that the execution of the decree of the court of first instance in Title Execution Case No. 39 of 1967, started by the decree-holder, would continue, as it has in fact so continued, and the only effect of the High Court's decree was to suspend for the tune being, further proceedings in the said execution case.
17. Mr. Ghosh, at the concluding stage of hearing, raised a point that in view of the pending proceeding in contempt against the petitioner in Civil Rule No. 854 of 1970, this rule cannot be heard unless he is purged of the contempt. It appears that the Bench, on hearing the parties in the said rule, preferred to await the decision on the petitioner's application under Section 17D (1) filed in the meantime in the trial court. The contempt Rule was fixed on August 8, 1970 for orders when the Court was informed that the said petition was dismissed by the trial court and on an application in revision by the petitioner tenant, a Rule, being the present Rule, has been issued. In that situation, the Bench adjournedthe hearing of the contempt rule sine die. It is, therefore, obvious that the Bench desired that the present Rule should be heard and disposed of before the contempt Rule is taken up. Accordingly, I feel that there is no impediment to my hearing the present Rule and Mr. Ghosh's objection to the contrary is overruled.
18. In the view I have taken the order impugned in the rule cannot be sustained. I accordingly make the rule absolute, set aside the order No. 47, dated July 15, 1970 in Title Suit No. 795 of 1957 passed by the learned Munsif, Second Court, Alipore. I further hold that the application filed on January 12, 1970 by the tenant defendant petitioner under Section 17-D (1) of the 1956 Act is maintainable in law. The said application will now be considered by the learned Munsif in accordance with law and I direct that the application be disposed of with utmost expedition and for the purpose, let the records be sent down at once.
19. There will be no order for costs in this Rule.