G.N. Das, J.
1. This is an appeal on behalf of the decree-holders under Clause 15, Letters Patent, and is directed against a judgment of Mookerjee J.
2. By a Kabuliyat dated 11-3-1921, the respondent Lakshmi Bibi took a lease of the disputed property from the predecessors of the appellants. This lease, it is not disputed, created a non-agricultural tenancy. The appellants served a notice to quit and thereafter on the expiry of the notice, instituted a suit in ejectment. The suit was decreed on 26-2-1940. This decree was executed and the appellants who are the decree-holders took possession on 26-4-1940. It is stated that in pursuance of the order of the Court the decree-holders paid for the value of the structures. The possession of the decree-holders was thereafter confirmed on 26-5-1940.
On 30-5-1940, the Non-agricultural Tenancy (Temporary Provisions) Act of 1940 came into force. Thereafter, on 20-6-1940, the respondent filed a petition under Section 4 of the said Act for setting aside the order for delivery of possession and for recovery of possession of the disputed property. On 27-7-1940, the decree-holders not opposing the application, the Court made an order in terms of Section 4 setting aside the order for delivery of possession and directing restoration of possession. The learned Judge has found that thereafter Lakshmi Bibi continued in possession. The life of the Non-Agricultural Tenancy Act of 1940, was in the first instance, for a term of two years and it was thereafter extended. It was superseded by the West Bengal Non-agricultural Tenancy Act of 1949 which came into force on 5-5-1949. Section 91 (1) of this Act repealed the Non-agricultural Tenancy Act of 1940. On 11-1-1950, the appellants made an application for execution of the decree which they had obtained as far back as 26-2-1940 and prayed for recovery of possession. Notice under Order 21, Rule 22, Civil P. C., was directed to be served. The two courts below differed on the question whether the notice under Order 21, Rule 22 of the Code had been served.
In this Court Mookerjee J. has not come to a finding on the question. When the application for execution was made, the respondent filed an objection that she was entitled to protection under the 1949 Act. The trial court gave effect to the objection but on appeal the lower appellate court reversed the decision of the trial Judge and directed delivery of possession. Against this order, the respondent took an appeal to this Court. Mookerjee J. set aside the order of the lower appellate court and allowed the appeal filed by the respondent. It is the propriety of this judgment which is now in controversy in this appeal.
3. Mr. Bagchi, learned Advocate for the appellants decree-holders, has contended, in the first instance, that the respondent Lakshmi Bibi cannot now be regarded as a non-agricultural tenant in view of the fact that the decree-holders had paid for the price of the structures. This question which is essentially a question of fact was not canvassed in any of the courts. On the other hand, when the respondent Lakshmi Bibi made an application under Section 4 of the 1949 Act, the decree-holders conceded that she was entitled to restoration of possession. It does not appear from the record that the huts have been removed. In these circumstances, it is too late in the day now for the decree-holders to agitate this question of fact in the third court of appeal. This contention must therefore be overruled.
4. Mr. Bagchi has next contended that the present execution which was levied by his clients was a new execution, and that the old execution which was started in 1940 had come to an end'. On this supposition, he has contended that Section 88 of the 1949 Act has no application. He has therefore suggested that the decree-holders were entitled to execute their decree for ejectment passed in the year 1940, limitation having been saved by the express terms of Section 7 of the 1940 Act and Section 89 of the 1949 Act. This contention would have required consideration if we had accepted the basic argument on which the contention was based, namely, that the present execution was a new execution and the execution proceedings taken in 1940 had come to an end. In my opinion, the execution which was started in 1940 had not been completely disposed of. The decree-holders prayed for recovery of possession in execution of their decree in ejectment. They had obtained an order from the executing court for delivery of possession and had got an order from that court confirming delivery of possession. There is also an order that the execution case was disposed of on full satisfaction.
If the matter has rested there, there might have been some force in the contention but then the respondent came up with an application under Section 4 of the 1940 Act. Whatever the reasons might be, the Court made an order in terms of Section 4. The effect of that order was to set aside the order for delivery of possession made in favour of the decree-holders and to direct restoration of possession. Once the order for delivery of possession made in favour of the decree-holders was set aside, the effect is that the satisfaction of the execution petition must be deemed to have been illusory. The result is that the prayer which was made by the decree-holders in their application for execution remained undisposed of. No further proceedings could be taken in that execution proceeding so long as the 1940 Act had remained in operation. In my opinion, it cannot therefore be said that the execution proceedings started in 1940 had lost its vitality. It remained undisposed of, and must be deemed to be pending within the meaning of Section 88 of the Non-agricultural Tenancy Act of 1949. Action could be taken in that execution proceeding provided it is available to the decree-holders in view of the provisions of 1949 Act.
The question therefore is whether the decree-holders are entitled to remedy under the provisions of the 1949 Act. It was first contended that even so the respondent cannot be called a non-agricultural tenant because his tenancy had been determined by a notice to quit which was followed by a decree and was worked out in execution by an order for delivery of possession. As I have already stated, the order for delivery of possession was set aside in the proceedings under Section 4 & restoration of possession was directed to be made. The respondent got back possession on the strength of the order under Section 4. In my opinion, the effect of the orders made in the execution proceedings of 1940 is that the possession of the respondent Lakshmi Bibi must be deemed to be continuing. The result, in my opinion, is that Lakshmi Bibi must be deemed to have remained in possession in spite of the notice and the decree in ejectment.
The question therefore is whether for the purposes of the 1949 Act Lakshmi Bibi could be regarded as a non-agricultural tenant. It is no doubt true that the 1949 Act does not expressly say that a non-agricultural tenant includes an ex-tenant, but if we apply the principles which were enunciated by a Special Bench of this Court in -- 'Sukumari Devi v. Rajdhari Pandey', : AIR1942Cal49 , namely, that the word must be used in a popular sense as including a tenant who has remained in possession in spite of the service of notice to quit coupled with a decree in ejectment, it may be justly said that the corresponding word in the 1940 Act should bear the same construction. In other words, for the purpose of applying the 1949 Act to proceedings pending at its commencement, the words 'non-agricultural tenant' must betaken to include a tenant whose tenancy was determined by a notice to quit but who remained in possession in spite of the notice and a decree in ejectment, it' cannot be disputed that if the words are taken in that sense, the respondent Lakshmi Bibi is entitled to protection under Section 7 of 1949 Act.
5. Mr. Bagchi also contended that Section 91 must be read as implying that after the passing of the 1949 Act the operation of the 1940 Act was wiped out. He Has referred us to the two clauses of Section 91 and has drawn our attention to the principles governing cases of 'casus ornissus'. In my opinion, Section 91 (1) merely repeals the 1940 Act. What the consequence of the repeal would be, would depend on the effect of repeal of a temporary Act under the general rules of interpretation. It cannot be said that Section 91 (2) necessarily implies that all the provisions of and all the orders made under the 1940 Act must be deemed to be 'non est'. On the other hand, in my opinion, as regards the order which had been completed and which had full effect before the repeal of the 1940 Act must be taken to have been properly passed. This contention of Mr. Bagchi must also fail.
6. In the result this appeal fails and must be dismissed with costs.
7. I agree.