The Judgment of the Court was delivered by

S.R Das Gupta, J.:— This is an appeal against an order of the Second Additional Subordinate Judge, 24-Parganas, passed in Miscellaneous Appeal No. 565 of 1952 affirming an order passed by the First Munsif, Sealdah.

2. The application out of which this appeal arises was made by the judgment-debtor under section 47 of the Code of Civil Procedure. There was a decree obtained against the judgment-debtor for possession. That decree was obtained at a time when the Ben gal Non-Agricultural Tenancy Act of 1940 was in force. The decree was passed by consent; and it would be necessary for the purpose of determining this appeal to examine the terms of the said decree in greater details. It would be sufficient to say for the present that under the said decree the plaintiff became entitled to eject the judgment-debtor from the holding in question, but if the judgment-debtor pays up within the period of thirty days all arrears of rent up to the date of the decree, then the execution of the decree would be stayed. The judgment-debtor paid up the said amount within the time mentioned in the decree, Thereafter Act XX of 1949, being the Bengal Non-Agricultural Tenancy Act of 1949, was passed. The said Act came into force on the 5th May, 1949. After the said Act was passed and on the 29th September, 1951, the decree-holder made an application for execution of the said decree. Objection was taken to such execution by the judgment-debtor under section 47 of the Civil Procedure Code. One of such objections was that the present application for execution was not maintainable in view of the provisions of Act XX of 1949. The said objections were overruled by the learned Munsif before whom the matter came up for hearing, and he held that the execution case was maintainable and not infructuous. An appeal was preferred against the said order to the Second Additional Court of the Subordinate Judge at Alipore. The lower appellate Court upheld the view taken by the learned Munsif and dismissed the appeal. Against the said order of the learned Subordinate Judge the present appeal has been preferred to this Court. The learned Advocate appearing for the appellant raised three contentions before us. In the first place, he contended that in view of the provisions of Act XX of 1949, i.e, Bengal Non-Agricultural Tenancy Act, 1949, the present execution proceeding is not maintainable. He drew our attention to sections 7 and 88 of the said Act (Act XX of 1949). In order to understand his contention it would be necessary to refer to the material provisions in those two sections. Section 7 inter alia lays down as follows:—

“Notwithstanding anything contained in any other law for the time being in force or in any contracts

(1) if any non-agricultural land has been held with or without any lease having been entered into by the landlord and the tenant from before the commencement of the Transfer of Property Act, 1882, or if the origin of any tenancy is unkown, or

(2) if the non-agricultural land comprised in any tenancy which has been or is created after the commencement of the Transfer of Property Act, 1882, has been held for a term of not less than twelve years without any lease in writing ****** then— (i) the tenant holding the non-agricultural land comprised in such tenancy shall not be ejected by his landlord from such land except on the ground that he has used such land in a manner which renders it unfit for use for the purposes of the tenancy, * * *”

3. Section 88 of the said Act reads as follows:—

“The provisions of this Act shall have effect in respect of all suits, appeals or proceedings including proceedings in execution for ejectment of a non-agricultural tenant which are pending at the date of commencement of this Act.”

4. The learned Advocate for the appellant contends that his client's tenancy falls under section 7(2) mentioned above. This fact has not been disputed before us. The learned Advocate then contends that that being so, his client is protected by sub-clause (i) of the said section which says that the tenant holding non-agricultural land comprised in such tenancy shall not be ejected by his landlord. He further contended before us that the provisions of section 88 of the said Act do not affect his rights. In other words, the right to be protected from ejectment is independent of the provisions contained in section 88, and such a right is conferred by sub-clause (i) of section 7 to which I have already referred.

5. The learned Advocate further con tended that the decision of a Division Bench of this Court in the case of Jadu Nath Das v. Mrinal Kanti Saha (1) reported in 58 C.W.N 502 should not stand in the way of his client in obtaining relief under sub-clause (i) of section 7 of Act XX of 1949. In the said case of Jadu Nath Das v. Mrinal Kanti Saha (1) the very question which is now before us seems to have come up for consideration. In that case an ejectment decree was obtained at a time when the Bengal Non-Agricultural Tenancy Act, 1940 (Act IX of 1940), was in operation. The execution of the said decree was stayed under the provisions of the said Act. Thereafter when the new Act of 1949, came into existence, the decree-holder filed a petition for execution. Before the courts below, the judgment-debtor claimed protection from ejectment under section 7 of the West Bengal Non-Agricultural Tenancy Act, 1949. Both the courts below held that the judgment-debtor was not entitled to such protection. The matter came up for consideration before Mr. Justice Das sitting with Mr. Justice Guha Ray, and their Lordships upheld the view taken by the lower Courts and dismissed the appeal. In delivering judgment Mr. Justice Das observed as follows:

“The Act came into force on the 11th of May, 1949. Hence all suits, appeals or proceedings pending on that date would be governed by the Act. It is contended that in the present case the execution proceeding must be deemed to be pending, because of the prohibition contained in the decree for ejectment staying execution of the decree for the life of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940. In the present case, no prior execution was levied. The mere fact that the decree for ejectment passed on the 12th of July, 1946, could not be executed during the above period does not connote that the execution of the decree was pending for the entire period during which the stay operated. What the Act contemplates is that the suits, appeals or proceedings referred to in section 88 must be actually pending at the date when the Act comes into operation.”

6. In this case also the execution proceeding was stayed at a time when the new Act did not come into operation. It is after the new Act had come into operation that the application for execution of the decree was made and execution proceedings were started. In the circumstances, following the reasonings of Mr. Justice Das; it must be held that the provisions of the Act of 1949, would not be applicable to the present proceedings and the appellant cannot claim any relief under the said Act.

7. But the learned Advocate for the appellant presented his arguments before us in a slightly different manner, and he contended that this argument he was now pressing before us was not pressed before Mr. Justice Das, and, therefore, his Lordship had no occasion to consider the same. The learned Advocate contended that he was not claiming relief because of section 88 but independently of it. His contention is that although it is true that section 88 does not refer to an execution proceeding which was started after the commencement of the new Act, still such a proceeding would be governed by the provisions of section 7 of the Act. In other words, notwithstanding the fact that section 88 makes no reference to a proceeding in execution started after the Act of 1949 came into force his client would be entitled to protection granted by section 7 of the Act even in respect of such proceedings. I have set out the material provisions of section 7, The learned Advocate strongly relied on the words “the tenant holding the non-agricultural land comprised in such tenancy shall not be ejected by his landlord” as they appear in sub-clause (i) of the said section, and contended that the bar which is imposed by the said section upon the landlord's right to eject would be operative even in a case where the execution proceeding was started for the first time after the new Act had come into operation. His contention was that it was not necessary to say anything in section 88 of the Act about execution proceedings which are started for the first time after the new Act had come into operation, because such proceedings are already covered by sub-clause (i) of section 7 of the Act.

8. There is no doubt some force in this contention of the learned Advocate, but on a proper consideration of the matter we are unable to accept the same. As the question involved was of some importance, we requested Mr. Sen Gupta to argue the matter as amicus curiae and he was good enough to give his assistance to the Court in the best manner possible and we are grateful to him for his assistance. It seems to us that section 7 of the Act only refers to suits which are to be filed after the new Act had come into force. The said section does not, in our opinion, relate either to a suit which has already been filed or is pending at the date when the new Act came into operation or to an execution proceeding pending at the said date or started after the said Act came into operation. If section 88 had not been incorporated in the Act, then the result would have been that a tenant could claim protection under section 7 of the Act from being ejected only when a suit for ejectment has been filed after the Act had come into existence. A tenant could not claim such protection where a suit has already been filed and is pending at the date when the said Act came into force, or where a decree has already been passed before the said date and execution proceeding is pending on the said date, or where such execution proceeding has been started after the said Act came into existence. Section 88, to our mind, is an exception to the provisions contained in section 7 of the Act. Section 88 brings all suits, appeals or proceedings, including proceedings in execution, pending at the date of the commencement of this Act within the provisions of the Act. In other words, the effect of that section is that not only suits which are filed after the commencement of the Act, but also suits, appeals or proceedings, including proceedings for execution, which are pending at the date of the commencement of the Act, would be included within the provisions of this Act. Thus a tenant would be entitled, because of the said section, to the benefits of the Act not only in respect of the future suits but also in respect of suits, appeals or proceedings pending at the date of the commencement of this Act. That to my mind is the real significance of section 88. That section 7, sub-clause (i) relates to future suits would be clear if we compare the provisions of the said section with those of section 9 of the Act. Section 9 is a counter-part of section 7 of the Act in the sense that section 9 gives relief, under the conditions mentioned in the said section, to tenants holding for a term less than twelve years and to other tenants mentioned therein. But the words material for our present purpose used in the said section are “the tenant holding such non-agricultural land would be liable to ejectment on one or more of the following grounds”. The expression “shall be liable to ejectment”, to my mind, denotes liability to be ejected in a suit. The use of this expression in section 9 indicates that the protection which is given by that section to certain classes of tenants mentioned therein is a protection in respect of suits which are to be filed in future, i.e, after the commencement of the Act. Having given our best consideration to the matter we hold that a tenant is entitled to protection under section 7 of the Act only in respect of a suit for ejectment which is filed after the commencement of this Act. In such a suit no decree for ejectment can be passed. There is an exception to that position made in section 88 of the Act. By that section the right given to a tenant under section 7. has been extended also to suits, appeals and proceedings, including proceedings in execution, which were pending at the date when the Act came into force and to no other, If then a proceeding in execution is started for the first time after the Act came into force such a proceeding does not come either under section 7 or under section 88 of the Act. In this case, the execution proceeding was started for the first time after the Act came into force, and, therefore, the tenant is not entitled to the reliefs claimed under the Act. In this view of the matter, we agree with the decision given in the case of Jadu Nath Das v. Mrinal Kanti Saha (1) (58 C.W.N 502), and we see no reason to differ from the same.

9. The next point urged by the learned Advocate is that the execution proceedings must be held to have been pending at the date when the new Act came into force. In our opinion, there is no substance in this contention. What happened was that at the time when the decree was passed, which was on the 1st November, 1944, the execution was ordered to be stayed. Thus no execution proceeding was, in fact, started at any time prior to the 29th September, 1951, when the decree-holder, for the first time, put his decree into execution. We cannot see how in the circumstances it can be said that the execution proceedings were pending at the date of the commencement of the Act.

10. This contention of the learned Advocate must, therefore, be overruled.

11. We now come to the third ground raised by the learned Advocate. He contended that the decree which was passed was a nullity, because no such decree could be passed by the Court under the provisions of section 3 of the old Act of 1940. In order to appreciate this contention it would be necessary to refer to the exact terms of the decree in question which was passed. The decree has been drawn up in Bengali. It appears from the decree as drawn up that the same was passed with consent of the defendant. The said decree provides that the decree-holder was to get possession of the land in question from the defendant. There is, however, another provision in the said decree which is very material for the present purposes. It provides that if the defendant pays within thirty days all arrears of rent up to date amounting to Rs. 115 and certain other payments mentioned in the decree, then the execution of the decree will be stayed. The decree does not mention how long the stay will continue if the payment is in fact made. The learned Advocate for the appellant stated before us that the payment has in fact been made. He further contended that this decree, if it is a decree passed under section 3 of the Bengal Non-Agricultural Tenancy Act of 1940, is a decree passed without jurisdiction. His contention, however, is that the decree is not and could not have been passed under the said section. It is according to him an ordinary consent decree and the effect of the consent decree is that although there is a decree for possession but if the judgment-debtor pays up all arrears of rent and makes certain other payments mentioned in the decree within the period of thirty days from the date thereof, then the execution of the decree for ejectment will be stayed for all time to come, that is to say, the decree will not be operative. In support of his contention that the decree, if it is a decree under section 3 of the Bengal Non-Agricultural Tenancy Act of 1940, is a nullity the learned Advocate first of all drew our attention to the provisions of section 3 of the said Act. The said section inter alia lays down as follows:—

“Notwithstanding anything contained in any other law for the time being in force, every suit and proceeding in any Court for ejectment of a non-agricultural tenant, other than a suit or proceeding for ejectment on account of the non-payment of rent by such tenant, shall be stayed for the period during which this Act continues in force:

Provided that every question for delivery of possession in execution of a decree for ejectment on account of the non-payment of rent by such tenant shall be stayed if, within thirty days from the date of the decree, such tenant deposits into Court the amount of the decree together with the costs of the proceeding.”

12. The learned Advocate contended that this decree was passed in a suit which was not a suit for ejectment on account of non-payment of rent by such tenant. If that is so, then no decree could be passed by the court in such a suit during the pendency of the Bengal Act IX of 1940. The Court was bound to stay the suit for the period during which the said Act continued in force. The provision in section 3 for staying the suit is mandatory and if the Court in violation of the said provisions passes a decree; then the decree is a nullity. In support of his contention that the present suit could not have been a suit for ejectment on the ground of nonpayment of rent by a tenant he drew our attention to the decision of this Court in the case of The Reliance Jute Mills Co., Ltd. v. Dukhi Shah (2) (46 C.W.N 889). There it was held that the suit or proceeding for ejectment on account of non-payment of rent in section 3 of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, which is Act IX of 1940, refers to cases where there is a condition in the lease authorised by section 111(g) of the Transfer of Property Act that in default of rent for a specified period the tenancy would be forfeited and the landlord would have a right to reenter. The expression, according to their Lordships, does not mean and could not be considered to mean a suit or proceeding for ejectment of a tenant who is in arrear as regards his rent, but the claim for ejectment was based on some other grounds. The learned Advocate contended that judged by the test laid down in that decision the present suit cannot be a suit for ejectment on account of non-payment of rent. We agree with the learned Advocate that the present suit upon which the decree in question has been passed is not a suit for ejectment on account of non-payment of rent. It is a simple suit for ejectment of a tenant who was in arrears of rent and, the suit was filed after giving notice to quit and on the expiry of the said notice. This is not a case in which there is a condition in the lease of tenancy, authorised by section 111(g) of the Transfer of Property Act that in default of payment for a specified period the tenancy would be forfeited and the landlord would have a right to re-enter. That being so, we are of the opinion that the learned Advocate is right in his contention that the suit is not a suit for ejectment on account of non-payment of rent by a tenant. But the question then is what would be the result if in spite of the provisions contained in section 3 of the said Act the learned Judge, instead of staying the suit during the period of the Act, passes a decree. Can it be said, as the learned Advocate contends, that the decree passed was without jurisdiction or is the decree passed an illegal decree which can be set aside in an appeal? In our opinion, the decree in question, although it was a bad decree and was passed contrary to the provisions of law, is not a decree which can be said to have been passed without jurisdiction. The learned Subordinate Judge had the jurisdiction to entertain the suit and there was no lack of jurisdiction on his part, either territorial or pecuniary or otherwise which prevented him from determining the suit. There was no inherent lack of jurisdiction, in which case the decree would have been a nullity. We cannot accept the proposition that the decree is a nullity as contended by the learned Advocate.

13. The next contention of the learned Advocate is that the present decree was not a decree passed under section 3 of the Act but was an ordinary decree passed with the consent of the parties and that the terms of the said decree have to be looked at for the purpose of ascertaining the true effect thereof. He contended that the true effect of the said decree is that although there is a decree for ejectment but the execution thereof will be stayed for all time to come if the judgment-debtor pays within the period of thirty days the sum mentioned in the decree. We have carefully looked into the terms of decree. In our opinion, the effect of it is that al though there will be a decree for ejectment; but if the defendant pays within the period of thirty days the sums mentioned in the decree, then the exetion of the decree will be stayd. It does not say for how long the stay will continue. In the absence of anything mentioned in the decree about the period during which the stay will be operative, the stay would be operative for all time to come. In other words, the effect of the said decree is that if the payments are made, then the decree will not be operative. We) agree with the contention of the learned Advocate that this is not a decree passed under section 3 of the Bengal Act IX of 1940. As previously indicated by me, the suit in which the decree was passed was not a suit for ejectment on account of non-payment of rent, and the learned Judge in view of the provisions in section 3 of the said Act was bound to stay the suit for the period during which the Act continued in force He, however, passed a decree and that was because, it seems, the defendant consented to such a decree being passed. But there is no reason to hold that because a decree has been passed it must have been passed under section 3 of the Act although the suit was not a suit for ejectment on account of nonpayment of rent and that the order for stay which was made must have been made under proviso to section 3 of the Act of 1940. We have no reason to assume that the learned Judge did not appreciate the correct position in law. He passed the decree not because he did not appreciate the true effect of the provisions of section 3, but because the defendant consented to such a decree being passed. In that view of the matter, we hold that the decree in question was an ordinary decree for ejectment passed with consent of the parties which contained a provision that if the payment mentioned in the said decree is made within the time stipulated therein the decree will not be executed.

14. It is not a deree passed in a suit for ejectment on the ground of nonpayment of rent and the provision for stay was not made under the proviso to section 3 of Act IX of 1940. That being our view as to the true effect of said decree and the payment having been made within time mentioned the decree has become unexecutable.

15. Before concluding my judgment, I should refer to another ground which also disentitles the decree-holder from executing the decree. The ordinary period of limitation for executing the decree would be three years and the said period in this case would be counted from 1st November, 1944, when the decree was passed. The application for execution in this case was made long after the said period.

16. Section 89 of the West Bengal Non-Agricultural Tenancy Act of 1949, no doubt provides that “in computing the period provided by any law for the time being in force for the execution of a decree for ejectment which was stayed under the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940, or for the institution of a suit for the ejectment of a non-agricultural tenant, the period during which the said Act continued in force shall be excluded,” but that section so far as it relates to execution exempts the period during which the said Act continued in force only in the case of execution of a decree passed in a suit for ejectment on the ground of nonpayment of rent because, the provi-vision for stay of execution made in the Act of 1940 is only in respect of a decree passed in such a suit. But the present suit is not a suit for ejectment on the ground of non-payment of rent, that being so, the ordinary period of limitation would govern the present execution; proceedings and the same is barred. So on this ground also the application for an execution must fail.

17. The result, therefore, is that this appeal is allowed and the orders passed by the courts below are set aside and the application for execution is dismissed. The appellant is entitled to costs of this appeal—hearing fee assessed at three gold Mohurs.

Mallick, J.:— I agree.

A.K.D.G