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"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 the commencement of this Act."

5. Dr. Gupta on behalf of the appellant argues, in the first place, that although no execution had been started at the date when the stay order was passed it must nevertheless be held that there was some proceeding before the Court which it stayed under Section 3 of the temporary Act of 1940. He next argues that if that was so the provisions of Section 88 apply to the facts of the present case. If Section 88 applies, Dr. Gupta further argues, that on a proper construction, it means that Section 7 or Section 9, as the case may be, will apply even in execution proceedings. The reason for this argument of Dr. Gupta is this: Unless such a broad construction is placed upon Section 88 a class of tenants who are not lucky enough to obtain a stay order while the suit or appeal against them was still pending when the Act of 1949 came into force, but who were unlucky enough to have the suit or the appeal disposed of before the commencement of the Act of 1949 would practically have no relief at all. It is undoubtedly true that even if Section 88 applies to a case where there was a decree before the commencement of the 1949 Act, the tenant can have relief only if the provisions like Section 7 or Section 9 of the Act of 1949 can be applied in the course of the execution or other proceedings and not otherwise. To that extent there is undoubtedly great force in the argument of Dr. Gupta, but then the whole question is whether fairly and reasonably we can put this liberal interpretation on the language of Section 88 of the Act of 1949.

7. In the case reported in 58 Cal WN 502 (A), the decree for ejectment was passed on 12-7-1946, and the judgment itself contained a provision for stay of the execution of the decree during the life of the Bengal Non-Agricultural Tenancy Act of 1940. On 26-11-1949, after the Act of 1949 had come into force on 15-5-1949, the decree-holder filed an application for execution. In the Courts below the judgment-debtor claimed protection from ejectment under Section 7 of the Act of 1949 and the Courts below held that the judgment-debtor was not entitled to such protection and it was argued before the High Court that the judgment-debtor was entitled to protection under Section 9 (1) (c) of the Act of 1949. It was further contended that the execution proceeding must be deemed to have been pending because of the prohibition contained in the decree for ejectment staying execution of the decree for life of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940, though no prior execution was levied. Das J., in delivering judgment observed as follows :

10. In support of this view there is the decision of a Division Bench of this Court in Astaram Bagdi v. Sitanath Mandal, 60 Cal WN 109 (C). In that case Das Gupta J., has carefully examined the relevant provisions of the Act and come to the conclusion that the words "shall not be ejected" and the words "shall be liable to ejectment" have no reference to ejectment in execution proceedings, but refer only to the liability of a decree for ejectment being passed against the tenant. In this connection reference is also made to 59 Cal WN 243 (B), where it has been held that Section 7 and Section 9 are intended to give protection to certain classes of tenants in respect of suits to be filed in the future, i. e. after the commencement of the Act of 1949, but Section 88 introduces an exception by extending that protection also to suits, appeals and proceedings, including proceedings in execution which were pending at the date when the Act came into force. This decision does not in so many words say to what extent the provisions of the Act shall have effect in respect of proceedings in execution, and on that point the case reported in 60 Cal WN 109 (C) (supra) has taken a decided view.

22. I now come to the second question raised in this appeal. In view of what I have already stated regarding the first point raised in this appeal, it is not necessary to give my views on the other question, but since I am now functioning as one of the Judges of the Division Bench and since I am unable to accept my learned brother's views on the other question, I should in fairness indicate my reasons for this difference.

23. The second Question which has been raised in this appeal is whether the Judgment-debtor could have been given any relief in the execution proceeding assuming that Section 88 of the Act of 1949 was applicable to the facts of the present case. My learned brother is of opinion that since a decree has already been passed against the appellant, the Court cannot touch or reopen that decree in the absence of any express provision in Section 88 or in any other section of the Act of 1949. With great deference to my learned brother I am unable to accept this interpretation of Section 88 made by him. The section says without any reservation that all the provisions of the Act of 1949 shall have effect in respect of all suits, appeals or proceedings including proceedings in execution, provided such suits, appeals or proceedings were pending at the date of the commencement of this Act. The provisions of the Act of 1949 were not certainly on the statute book when the proceeding with which we are concerned was stayed in January, 1941. There would be no sense in extending the provisions of the Act of 1949 to earlier suits, appeals or proceedings if the tenant was not given all the benefits of the Act of 1949, including the benefits of Sections 7 and 9 of the Act. Of course, it has been held in a case reported in 60 Cal WN 109 (C), that the words "liable to ejectment" in Section 9 of the Act of 1949 have no reference to ejectment In execution proceedings, but refer only to the liability of a decree for ejectment being passed against the tenant. This decision purports to follow an earlier decision already mentioned by me, viz., the decision reported in 59 Cal WN 243 (B) (supra).