Mono Mohon Das Gupta v. Sm. Umarani Sanyal .

1. This is a Rule against an order of a Judge of the Calcutta Court of Small Causes refusing to entertain an application made by an occupant of a premises against whom an order under Ch. VII of the Presidency Small Cause Court Act had been made by consent. The order in question was made on the 16th March, 1949, and the date for delivery of possession was fixed as the 20th September, 1949. The record shows that according to the procedure of the Court for the carrying out of the order the applicant in the proceedings under Ch. VII filed a writ of possession on the 13th September, 1949. The rules regarding the procedure are 109 and 110 in Volume 2 of the Manual of the Court of Small Causes. The form of the rule is prescribed at page 238 of the same volume. On the 14th September, that is on the following day, the Defendant made an application purporting to be under Sec. 47 of the Code of Civil Procedure for permanent stay of the order. By consent the actual date of delivery of possession was put off from time to time pending the disposal of the application. Finally, on the 30th November, the learned Judge passed the order which is the subject-matter of the present Rule in which he has held that there being no execution in process the judgment-debtor cannot maintain the present application under Sec. 47 of the Code of the Civil Procedure. The learned Judge's view is coloured by the persistent error of the Judges of the Court of Small Causes by treating proceedings under Chap. VII of the Act as though they were regular suits in ejectment. Nothing can be clearer than that they are not. They are proceeding sui generis and partake to my mind of a mixture of suit and execution procedure rolled into one. In any case the rules of the Court show that once an order under Sec. 43 has been passed by the Court the procedure is for application by the possessor of the order by filing a writ of possession and the necessary court-fees, whereupon the writ will duly pass to the bailiff for carrying out on the date fixed. Under Sec. 48 of the Act in proceedings under Chap. VII the provisions of the Civil Procedure Code so far as may be are to apply. It seems difficult to appreciate how the learned Judge can hold that if the order under Sec. 43 is treated as a decree, (which appears to be his view) the further proceedings for the carrying out of the order are not of the nature of execution. As far as I can understand, the learned Judge's view is that until the occupant of the premises has been removed there has been no execution at all. The learned Judge's order leads to considerable doubt as to whether he has at all understood the procedure of the Court. I have not the slightest doubt that the occupant is entitled to a decision of the Court on a contention that the order for possession has by agreement in some way been satisfied or otherwise disposed of and that the order of the learned Judge saying that the present application is premature is quite unsustainable.

2. The Rule is accordingly made absolute with costs.

3. The matter is sent back to the learned Judge, as quickly as may be, to dispose of the application of the occupant, the present Petitioner before me.

N.D.R