We are invited in this Rule to examine the legality of an order made in proceedings in execution of a decree in a suit for ejectment of a tenant on the ground of forfeiture for misuse of the lands of his tenancy.

The Petitioner was an occupancy ryot under the opposite party and was consequently liable under sec. 25 of the Bengal Tenancy Act to be ejected by his landlords from his holding in execution of a decree for ejectment passed on the ground that he had used the land comprised in his holding in a manner which rendered it unfit for the purposes of the tenancy. In 1912, the landlords instituted a suit against him under sec. 155(1)(a) of the Bengal Tenancy Act to eject him on the ground that he had excavated a tank on his holding which rendered it unfit for the purposes of the tenancy. The suit was decreed by the trial Court on the 6th November, 1914, in the following terms:— “The Defendant do fill up the tank by the end of the present Bengali year 1321, (i.e, 13th April, 1915), or in the alternative, do pay Rs. 125 to the Plaintiffs as compensation within that time, if he fails to carry out either of the two alternative directions within the time fixed, he will be ejected from the entire holding by executing the decree”. The Petitioner, who was Defendant in that suit, appealed against this decree. During the pendency of the appeal the landlords instituted a suit against him on the 17th March, 1915 to recover from him arrears of rent due from the beginning of thd Bengali year 1318 (i.e, 14th April, 1911) to the end of Pous 1321 (i.e, 14th January, 1915). The claim was decreed in full on the 15th January, 1916. The appeal against the decree in the suit for ejectment was then taken up for disposal on the 13th March, 1916 and was dismissed for default. An application was made for restoration of the appeal, but was summarily rejected. An appeal was thereupon lodged in this Court against the order of refusal to revive the appeal before the District Judge; that appeal is still pending here. Meanwhile, on the 24th March, 1916, the landlords applied to the trial Court to execute the decree of the 6th November, 1914 by ejectment of the Defendant. No, notice was served upon the Defendant, the writ was issued forthwith, and, two days later, what is called symbolical delivery of possession was given to the landlords. The tenant thus apprised of what had taken place, applied to the trial Court on the 1st April, 1916, and prayed that the ex parte proceedings for delivery of possession should be cancelled. His contention was twofold, namely, first, that the decree of the 6th November, 1914 had become incapable of execution, as the landlords had waived the forfeiture by the subsequent institution of the suit for rent, and, secondly, that the Court should, in the exercise of its judicial discretion, make an order for extension of time for the performance of the decrree under sec. 155(3). The Court overruled these contentions on the 18th April, 1916. The present Rule was thereupon issued by this Court on the 19th June, under sec. 115 of the Civil Procedure Code and sec. 107 of the Government of India Act, 1915.

Before we deal with the questions in controversy, we may observe that when the landlords applied for execution on the 24th March, 1916, the application was correctly described as one for execution of the decree of the 6th November, 1914, because on that date the only decree capable of execution was that decree. There is really no foundation for the suggestion, somewhat plausibly made in this Court on behalf of the decree-holders, that by reason of the dismissal of the appellate to the District Judge on the 13th March, 1916, the decree of the trial Court had been merged in the decree of the Appellate Court and had been superseded thereby. It is indisputable that the original decree is merged in the appellate decree whether the latter confirms, amends or reverses the original decree, and it is the appellate decree alone which can be executed. [See the authorities collected in Abdur v. Maidin(1) and Ghandvakant v. Lakshman(2) decided by Mookerjee and Cuming, JJ., on the 19th July, 1916]. But this doctrine cannot be applied where the appeal is dismissed for default; in such a case the appeal fails for non-prosecution and it cannot appropriately be said that the Court of appeal adopts the decree of the Primary Court. This was recognised by Sir Barnes Peacock, C.J, when in his judgment in the Full Bench case of Biprodas v. Chandrasekhar(3), he observed that if, in the case of an appeal, a new judgment of affirmance of the former decree should be given, then a new judgment would have to be executed, but if the appeal were dismissed for default, there would be no new judgment and the judgment of the lower Court would be the judgment to be enforced. This view was adopted by a Full Bench of the Madras High Court in Vira Samy v. Manommany(4) and has now been accepted by the Legislature in the definition of the term “decree” in sec. 2(2) of the Civil Procedure Code of 1908, which expressly provides that any order of dismissal for default is not a decree. We are not now concerned with the question of the period of limitation applicable to an application for execution of an original decree when an appeal against such decree has been dismissed for default, the answer to that question will depend upon the true construction of Article 182(2) of the second schedule to the Indian Limitation Act, 1908, which, it may be incidentally observed, introduces at least one important variation from the corresponding provisions of the previous statutes of limitation. In our opinion it is fairly clear that when an appeal against an original decree has been dismissed for default, the order of dismissal is not a decree, that there is consequently neither in form nor in substance an appellate decree wherein the original decree may be deemed to have become merged, and that the original decree is thus the decree to be executed, notwithstanding the dismissal of the appeal for default. What, then, is the inevitable consequence of the application of this principle to the case before us? The decree, which was sought to be executed by the application of the 24th March, 1916, was the decree of the 6th November, 1914. As more than one year had elapsed from the date of the decree, it was incumbent upon the Court to issue a notice to the judgment-debtor under r. 22, (1)(a) of Or. 21 of the Code. This was not done, and the reason why the decree-holders did not move the Court to issue the requisite notice is transparent; their intention, no doubt, was to take possession in execution as expeditiously as possible, without opportunity afforded to the judgment-debtor to raise any objection. The delivery of possession was effected, as we have seen, on the second day after the issue of the writ. Such execution, in contravention of the express provisions of the statute, cannot possibly prejudice the position of the judgment-debtor or embarrass the Court in the determination of the merits of the controversy between the parties. It was pointed out by the Judicial Committee in Raghunath Das v. Sun-dardas(5), that the notice prescribed by sec. 248 of the Code of 1882 (now replaced by Or. 21, r. 22) is necessary in order that the Court should obtain jurisdiction to proceed against the property of the judgment-debtor by way of execution. The omission to give notice, as required by the Rule, is not a mere irregularity which makes the proceeding voidable, but is a defect which goes to the root of the proceeding and renders it void for want of jurisdiction [Gopal v. Gunamani(6), Sahdeo v. Ghasiram(7) and Par ashram v. Balmukund(8)]. From the point of view that the notice is requisite as the very foundation of the jurisdiction of the Court, it is plain that the proceedings must be treated as inoperative even though a stranger may have acquired title in course thereof, but the position is obviously worse where the decree-holders themselves profess to acquire title on the basis of proceedings initiated by them and carried on in defiance of statutory requirements. We may add that, as explained in the cases of Sudevi v. Sovaram(9) and Bechu v. Becharam(10), even where sec. 248 of the Code of 1882 or Or. 21, r. 22 of the Code of 1908 does not apply, the Court should issue a notice on the judgment-debtor and hear his objection, if any, before it grants execution of a conditional decree on the ex parte statement of the decree-holder that the contingency contemplated has happened. We are consequently of opinion that the delivery of possession which is said to have taken place on the 26th March, 1916 cannot hamper us in the least degree and that we should deal with the case as if that delivery of possession had never taken place. We are further of opinion that the Court below also should have considered the matter from this point of view; as explained in Tikait Ajant Singh v. Christien(11), when an ex parte order has been made to the prejudice of a litigant who has not been afforded an opportunity to be heard—an opportunity which in this case he was entitled to have, under express statutory provisions—the order must be regarded as subject to the implication that it may be revoked at the instance of the party affected thereby and the Court has inherent power to give such directions as the justice of the case may require. We shall now proceed to examine the two grounds urged by the judgment-debtor in the Court below and reiterated here.

The first contention of the judgment-debtor is to the effect that the institution of the suit for rent by the landlords has rendered the decree for ejectment previously obtained incapable of execution; the argument in substance is that the forfeiture has been waived. It is clear that an objection of this character may properly be taken in proceedings in execution of the decree; the judgment-debtor, when he takes such objection, does not attack the decree; he merely urges that the decree, though properly made, has, by reason of events subsequent, become incapable of execution. Thus, it was ruled in Nubukissen v. Hurishchunder(12), that receipt of rent subsequent to a decree for ejectment under sec. 78 of the Bengal Rent Act, 1859, from a tenant against whom the) decree was passed, renders execution of the decree impossible. Similarly, it was ruled by the Judicial Committee in Forbes v. Maharaj Bahadur Singh(13) that a decree for ejectment made against a tenant at the instance of his landlord under sec. 66(1) of the Bengal Tenancy Act, cannot be executed, if the decree-holder ceases to be the landlord after he has obtained the decree. We must, consequently, consider the effect of the institution of the suit for rent on the decree for ejectment. The judgment-debtor argues that the suit for ejectment was instituted and could have been instituted, only, on the hypothesis that his tenancy had been forfeited by misuse of the lands, that the institution of the suit was the final election by the landlords to avail themselves of the forfeiture which had thus taken place, and that the institution of the suit for rent for a period subsequent to the date of commencement of the suit for ejectment accordingly operated as a waiver by the landlords of the forfeiture. To test the correctness of this argument, three propositions may be premised, namely, first, that a suit for ejectment of a tenant on the ground of forfeiture is instituted on the theory that the forfeiture has taken place prior to the commencement of the action, in other words, that the landlord has, when he comes into Court, a subsisting cause of action by reason of the unlawful possession of the tenant notwithstanding the determination of his tenancy [Greenfield v. Hanson(14), Wilson v. Rosenthal(15) and Deonandan v. Meghu Matho(16)]. Secondly, that as it is at the option of the landlord whether he will take advantage of the forfeiture or not, he may indicate his election by the institution of a suit for ejectment [Serjeant v. Nash(17), Grimwood v. Mass(18), Jones v. Garter(19) and Kilkenny Gas Co. v. Somerville(20)], and, thirdly, that the forfeiture is waived by the institution of a suit for or by the mere receipt of rent which has accrued due since the cause of forfeiture [Bendy v. Nicholl(21), Penton v. Barnett(22) and Rajmohun v. Matilal(23)]. But there is also authority for the position that the receipt of rent, after an ejectment brought on a forfeiture, is no waiver of such forfeiture [Deod More-craft v. Meux(24) and Toleman v. Port-bury(25)]. These propositions are of no assistance to the tenant in the case before us. Assume that there was a forfeiture of the tenancy by reason of misuse of the land, that the landlords elected to avail themselves of the forfeiture, and that they instituted the suit for ejectment on this basis. Do these premises necessarily show that they waived the forfeiture when they instituted the suit for rent which had accrued due since the commencement of the suit for ejectment? There might have been no escape from an inference that there had been such waiver, if there had been no provision for relief against forfeiture. The true question in controversy is, how is the status of the tenant affected by the provisions for relief against forfeiture embodied in sec. 155. There are three alternative views possible, namely, first, that the tenancy continues in operation till the failure of the tenant to comply with the decree made under sec. 155 within the time prescribed thereby, secondly, that the tenancy remains in abeyance, and terminates with retrospective effect if the decree is not carried out, but revives with intermediate operation if the tenant fulfils the conditions imposed by the decree, thirdly, that the tenancy finally terminates on the indication of election by the landlord by the institution of the suit for ejectment, but a new tenancy is created if the decree is obeyed. We are of opinion that the second and third alternatives must be rejected—the former on the ground that a right cannot ordinarily remain in a state of suspense or abeyance, the latter on the ground that the creation of a new tenancy cannot appropriately be deemed a “relief” against forfeiture. The first alternative is, we think, free from objection, and this was the view recently adopted by the Court of Appeal in England in Bendy v. Evans(26), which affirmed the decision of Darling, J., in Dendy v. Evans(27). In that case, a lease of premises contained a covenant by the lessee to keep the premises in repair, and there was a proviso for re-entry upon breach of any covenant in the lease. The lessee sublet the premises to the Defendant. The under-lease contained a covenant to repair similar to that in the head lease and a similar proviso for re-entry. The premises went out of repair and the lessor issued a writ against the lessee to recover possession thereof. The lessee thereupon assigned to the Plaintiff the term granted by the lease and the benefit of the arrears of rent. The Plaintiff applied for and obtained an order under sec. 14(2) of the Conveyancing Act, 1881, that all further proceedings in the action should be stayed and that the Plaintiff should have relief from the forfeiture and should hold the premises according to the old lease without any new lease. The Plaintiff then brought an action against the Defendant to recover rent due upon the under-lease, subsequent to the issue and service of the writ by the lessor to recover possession of the premises. The question arose, whether the issue and service of the writ by the lessor, which clearly operated as a final election by him to determine the lease, had extinguished the title of the Plaintiff. Darling, J., ruled that the effect of the subsequent order for relief was to restore the lease as if it had never become forfeited, with the result that the underlease also remained in existence and the Plaintiff was entitled to recover the amount claimed. The true position then is that the word “relief” carries with it the meaning that the forfeiture is deemed not to have taken place at all, in other words, as soon as the relief is granted, the forfeiture disappears just as if there never had been any forfeiture at all. The history of the development of this principle indicates that the question is by no means free from difficulty. Before the Landlord and Tenant Act, 1780, when a Court of Equity gave relief from forfeiture for non-payment of rent, it was done in some instances by grant of an injunction to restrain further proceeding at law so that the old lease continued, and in other cases, by a direction on the landlord to graat a new lease, as explained by Wigram, V.C, in Bowser v. Colby(28) [see also the judgment of Day, J., in Hare v. Elms(29)]. The statute just mentioned provided that in all such cases the lessee should hold the demised lands according to the lease made without any new lease. This was re-enacted in 1852 in sec. 212 of the Common Law Procedure Act, which has now been replaced by sec. 14(2) of the Conveyancing Act, 1881. With reference to this statute, which is closely analogous to sec. 155 of the Bengal Tenancy Act, the decision in Dendy v. Evans was given. Cozens-Hardy, M.R, refused to listen to the suggestion that the effect of the grant of relief against forfeiture was merely to resuscitate the lease or to grant a new lease from the date of the order; it was the original lease, he observed;, which continued for all purposes, not a new lease. Farwell, L.J, relied upon the definition of the term “relief” given by Lord Davey in Nind v. Nineteenth Century(30) “the words ‘relief’ and “relieve” are the appropriate terms to describe the remedial action of the Court of Equity in cases where a penalty of forfeiture had been incurred, which the Court thinks it equitable that the complainant should not lie under or suffer”. Reliance was also placed by way of analogy upon the well-known principle applied to mortgage cases, as enunciated by Lord Hatherly in Thomson v. Hudson(31). “Equity regards the security that has been given as a mere pledge for the debt and it will not allow a forfeiture of the property pledged on the ground that equity regards the contemplated forfeiture which might take place at law with reference to the state as in the nature of a penal provision, against which equity will relieve, when the object in view, namely, the securing of the debt, is attained”. It is thus apparent that sec. 155 of the Bengal Tenancy Act enables the Court to give the tenant relief on the footing that there shall be no forfeiture at all; when relief is granted, the forfeiture is stopped in limine, so that there is no question of any destruction of an interest which has to be called into existence again. The tenant consequently continued in the case before us as a tenant at least up to the 13th April, 1915, the date fixed in the decree for performance of the obligation imposed on him thereby. There could thus be no waiver of a forfeiture by the institution on the 17th March, 1915 of a suit for rent for the period between the 14th April, 1911 and the 14th January, 1915. The decree for ejectment did not consequently cease to be enforceable by reason of events subsequent.

The second contention of the judgment-debtor is to the effect that this is a fit case for extension of the period fixed by the decree for the performance thereof under sec. 155(3). The decree-holders contend that an application for extension of time cannot be entertained if made after the expiry of the prescribed period. There is no force in this contention; it appears from the decision in Siunaman v. Sham Charan(32) that it is competent to the Court to entertain an application for enlargement of time after expiry of the period prescribed in the decree and even after the decree-holder has applied for execution. This was ruled with reference to sec. 178(3) of the Chota Nagpur Tenancy Act, 1908, which is moulded on sec. 155 of the Bengal Tenancy Act. A remedial provision of this character should be construed liberally so as not to restrict the remedy and fetter the discretion of the Court. Whether an order for extension of time should be made or not depends, however, upon the circumstances of the litigation, i.e, upon the circumstances disclosed at the original trial and the events subsequent. We have carefully considered the matter from this point of view and taken into account all that has been urged for and against the application. We have arrived at the conclusion that the time for performance of the decree should be extended up to the 4th September next. The judgment-debtor will be at liberty to deposit in this Court, to the credit of the opposite parties, Rs. 125 on or before the 4th September next. If the deposit is so made, the Rule will be made absolute and the order of the Court below will stand discharged; and order will also be made that the Petitioner be forthwith restored to possession, and such order will be executed by the Court below as a decree of this Court. An order will also be made by consent of parties in the appeal now pending in this Court against the order for refusal to restore the appeal before the District Judge that the appeal do stand dismissed without costs. If, on the other hand, the deposit is not made as directed, the Rule will stand discharged. The final order in these proceedings will be drawn up in this Court according to the event which happens, that is, according as the deposit is or is not made within the time now fixed.

As the Petitioner obtains an extension of time and fails in his objection to the execution, he must pay to the opposite party the costs of this Rule which we assess at one gold mohur.

S.C.M

Rule made absolute.