Prafulla Chandra Gangopadhya v. Raj Mohan Das Opposite Party

The Judgment of the Court was as follows:—

Nasim Ali, J.:— An occupancy holding was sold in execution of a decree on April 9th, 1938. Notice of this transfer was served upon the Petitioner on August 12th, 1938. The Bengal Tenancy (Amendment) Act of 1938 by which sec. 26F was amended came into operation on August 1st (?), 1938. The Petitioner filed an application for preemption under sec. 26F on September 22nd, 1938. The learned Munsif before whom this application was filed has come to the conclusion that as the machinery for enforcing the right of pre-emption has already been taken away by the amending Act which came into operation before the application for pre-emption was filed, he had no jurisdiction to entertain that application. He accordingly rejected the application. Hence this Rule was obtained by the Petitioner.

It is clear that sec. 26F which has now been amended provided also for a procedure according to which the right of pre-emption had to be exercised. That procedure has now been abrogated. The Munsif, therefore, could not entertain the application for pre-emption under that procedure. The question as to whether after the amendment of sec. 26F the right of pre-emption still survives and can be enforced by a suit in the ordinary Civil Court is a matter on which we express no opinion.

The Rule is, accordingly discharged, but there will be no order as to costs.

Rau, J.:— I agree.

P.C