ORDER
1. This revisional application has been filed by the judgment-debtor/ petitioner, against the decree-holders/opposite parties against the order dated 21st May, 1986 by which the petitioner’s application under Section 47 of the Code of Civil Procedure was rejected, in which the judgment-debtor petitioner prayed for dismissal of the execution case on the ground that the judgment and decree passed by the trial Court, which was affirmed by this Court in Second appeal, is a nullity.
2. The decree-holders/opposite parties filed suit against the judgment-debtor/petitioner for eviction alleging that by a registered conveyance the decree-holders-plaintiffs purchased the property in question and that the defendant/judgment-deb tor was a monthly tenant-at-will under the predecessor-in-interest of the decree-holders/opposite parties and that the tenancy was governed originally by the provisions of the Calcutta Thika Tenancy Act, 1948, but because of the subsequent amendment in the Calcutta Thika Tenancy Act by the amendment of 1968, the provisions of the Calcutta Thika Tenancy Act having been withdrawn, from the Garden Reach area, where the suit premises lies with a retrospective effect, the tenancy was governed by the provisions of the Transfer of Property Act. The trial Court decreed the suit for eviction by the judgment and decree dated 10th January, 1971, holding that the tenancy was governed by the Transfer of Property Act because of the changes in law.
3. Being aggrieved by the said judgment and decree passed by the trial Court, the judgment-debtor/ petitioner preferred an appeal before the lower appellate Court and the lower appellate Court dismissed the appeal filed by the judgment and decree dated 7th October, 1974 in Title Appeal No. 296 of 1974, and affirmed the decree for eviction passed by the trial Court. Against that judgment and decree passed by the lower appellate Court dated 7th October, 1974 the judgment-debtor/petitioner preferred a second appeal before this Court which was registered as Appeal from Appellate Decree No. 194 of 1977 and that the said appeal was also dismissed by Arun Kurnar Janah, J. of this Court by the judgment and decree dated 13th April, 1983, inter alia, holding that the tenancy was governed by the provisions of Transfer of Property Act and there was nothing to show that the provisions of the West Bengal Non-Agricultural Tenancy Act, 1949 automatically became applicable to the disputed land after the withdrawal of the Calcutta Thika Tenancy Act from the lands within the Garden Reach Municipality with retrospective effect.
4. After the dismissal of the appeal by this Court the judgment-debtor-petitioner filed an objection under Section 47 of the Code of Civil Procedure before the executing Court alleging that during the pendency of the appeal before the lower appellate Court, the West Bengal Non-Agricultural Tenancy Act, 1949 was amended by the Amending Act of 1974 whereby the provisions of the West Bengal Non-Agricultural Tenancy Act was extended to the area in question and as such the provisions of the West Bengal Non-Agricultural Tenancy Act should be made applicable in this case and the tenancy should be governed by the provisions of that Act and not under the provisions of the Transfer of Property Act. The trial Court by the order dated 21st May, 1986, passed in Misc. Case No. 3 of 1986, rejected the said objection raised by the judgment-debtor as to the maintainability of the decree.
5. Mr. Saktinath Mukherjee, learned Advocate appearing on behalf of the petitioner, contended in the first place ihat the Calcutta Thika Tenancy Act, 1948 came into force with effect from 28th February, 1949 and in view of the provisions of Section 1(2) of the said Act the provisions of the said Act were applicable to the Garden Reach Municipality area. The relevant provision of 1949 Act was as follows :-
“It extends to Calcutta as defined in Clause (ii) of Section 3 of the Calcutta Municipal Act, 1923 and such suburbs of Calcutta as may have been or may hereafter be notified under Section 1 of the Calcutta Suburban Police Act, 1966 and are not included within Calcutta as so defined and also to the municipality of Howrah.”
Thereafter, the Calcutta Thika Tenancy Act was amended by the Calcutta Thika Tenancy (Amendment) Act, 1969. Section 2 of the said Amended Act was as follows:–
“In sub-section (2) of Section 1 of the Calcutta Thika Tenancy Act, 1949 (hereinafter referred to as the said Act) the following words and figures shall be, and shall be deemed always to have been, omitted, name-ly:-
Such suburbs of Calcutta as may have been or may hereafter be notified under Section 1 of the Calcutta Suburban Police Act, 1966,; and area not included within Calcutta as so defined and also.”
6. As a result of this amendment with retrospective effect, the tenancy which was hithertobefore governed under the provisions of the Calcutta Thika Tenancy Act would not be governed by the provisions of that Act and consequently the same was to be governed by the provisions of the Transfer of Property Act.
7. In this case the suit was filed in July, 1971 during the pendency of the appeal before the lower appellate Court, the provisions of the West Bengal Non-Agricultural Tenancy Act, 1949 were amended by the West Bengal Non-Agricultural Tenancy (Amendment) Act, 1974. Section 2 of the said Amended Act provides as follows:–
“In Section 1 of the West Bengal Non-Agricultural Tenancy Act, 1949 (hereinafter referred to as the said Act), for sub-section (2), the following sub-section shall be substituted, namely:–
(2) It extends to the whole of West Bengal except the area to which the provisions of the Calcutta Thika Tenancy Act, 1949 applies.'”
8. As a consequence of this amendment the position was that in respect of the Garden Reach area, the West Bengal Non-Agricultural Tenancy Act, 1949 was extended. This amendment took place during the pendency of the appeal and according to Mr. Mukher-jee, the West Bengal Act VIII of 1974 by which the West Bengal Non-Agricultural Tenancy Act, 1949 was extended to Garden Reach area should govern the tenancy of the petitioner and as such the decree which was passed in accordance with the provisions of the Transfer of Property Act could not be sustained unless such a decree conforms with the requirements of the West Bengal Non-Agricultural Tenancy Act, 1949.
9. Mr. Mukherjee also relies on the provisions of Sections 7 and 9 of the West Bengal Non-Agricultural Tenancy Act, 1949 which lays down the incidence of tenancy under the provisions of the West Bengal Non-Agricultural Tenancy Act were given overriding effects by the use of the expression:–
“Notwithstanding anything contained in any other law for the time being in force or any contract…..”
The Sections 7 and 9 of the West Bengal Non-Agricultural Tenancy Act puts an embargo on the right of the landlord to file suit for eviction except on the grounds mentioned therein.
10. Mr. Mukherjee submitted that because of the restrictions imposed upon the right of the landlord to file suit for eviction in Sections 7 and 9 of the said Act, the suit filed by the plaintiff/opposite parties for eviction of the defendant/petitioner was not maintainable, and submitted that in the instant case because of the change of law during the pendency of the first appeal, the decree that was passed in the suit should be treated to be a nullity inasmuch as the rights of the landlord to file suit under the provisions of the Transfer of Property Act, as well as under the provisions of the West Bengal Non-Agricultural Tenancy Act are quite different. In substance, according to Mr. Mukherjee the bone of contention is whether the rights of the parties would be governed by the provisions of the Transfer of Property Act as was done by the trial Court and affirmed in appeal, or whether the same would be governed by the provisions of the West Bengal Non-Agricultural Tenancy Act because of its extension to this area by virtue of the West Bengal Non-Agricultural Tenancy (Amendment) Act, 1974 with effect from 26th March, 1984. Admittedly the first appeal was pending before the lower appellate Court on the date when the area of operation of the West Bengal Non-Agricultural Tenancy Act, 1949 was extended to Garden Reach.
11. Mr. Mukherjee, in support of his contention that change of law in the pending appeal should be taken into account while disposing of the appeal which is pending before the appellate Court, relied upon a decision of the Supreme Court in the case of Lakshmi Narayan Guin v. Niranjan Modak, . The Supreme Court considered the effect of extension of the West Bengal Premises Tenancy Act, 1956 to a particular area during the pendency of the appeal filed in connection with an eviction case. In that case, during the pendency of a suit for evidence the provisions of the West Bengal Premises Tenancy Act, 1956 were extended by the State Legislature in respect of the area where the suit property situated. In that case the suit was decreed by the trial Court which found that the respondent was a tenant under appellants and the appellants were entitled to possession and to recover arrears of rent. The tenancy was governed at the time of filing of the suit by the provisions of the Transfer of Property Act and that in that case, during the provisions of the West Bengal Premises Tenancy Act were extended to Memari by sub-section (1) of section 13 of the said Act which provides:–
“Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the grounds….”
The question arose for consideration before the Supreme Court in this case whether the decree that was passed by the trial Court in a suit under the provisions of the Transfer of Property Act was maintainable or not in view of the fact that during the pendency of the first appeal, the provisions of the West Bengal Premises Tenancy Act, 1956, were extended and whether the suit would be governed by the provisions of the West Bengal Premises Tenancy Act. The Supreme Court held in paragraph 8 of the judgment:
“The next point is whether sub-s. (1) of S. 13 can be invoked where the suit was instituted before the Act came into force. In the instant case, the suit was instituted long before the Act was extended to Memari. Sub-s. (1) of S. 13 directs the Court not to make any order or decree for possession subject, of course, to the statutory exceptions. The legislative command in effect deprives the Court of its unqualified jurisdiction to make such order or decree. It is true that when the suit was instituted the Court possessed such jurisdiction and could pass a decree for possession. But it was divested of that jurisdiction when the Act was brought into force. The language of the sub-section makes that abundantly clear, and regard must be had to its object.”
At paragraph 9 the Supreme Court observed:–
“That a change in the law during the pendency of an appeal has to be taken into account and will govern the rights of the parties was laid down by this Court in Ram Sarup v. Munshi, which was followed by this Court in Mula v. Godhu, . We may point out that in Dayawati v. Inderjit, this Court observed :–
“If the new law speaks in language which, expressly or by clear intendment, taken in even pending matters, this Court of trial as well as the Court of appeal must have regard to an intention so expressed, and the Court of appeal may give effect to such a law even after the judgment of the Court of first instance.”
Mr. Mukherjee contended that the decree in this particular case should be declared as a nullity in view of the fact that when the first appeal was pending, the provisions of the West Bengal Non-Agricultural Tenancy Act were made applicable to that area and as such the appeal should be decided on the basis of the said amended Act and it was further contended that the decree passed by the trial court merges with the decree passed by the lower appellate Court and, in case the second appeal is taken out, in that’event the decree of the trial Court shall merge with the decree passed in the second appeal on the principle of merger.
12. Mr. Mukherjee drew the attention of this Court that on 4th November, 1986 the West Bengal Non-Agricultural Tenancy Act, 1949 was further amended with retrospective effect by the West Bengal Non-Agricultural Tenancy (Amendment) Act, 1986. Sections 2, 3 and 4 of the said amending Act which are relevant for the purpose of this case are as follows:–
“2. In Section 1 of the West Bengal Non-Agricultural Tenancy Act, 1949, for subsection (2), the following sub-section shall be substituted and shall be deemed always to have been substituted:–
‘(2) It extends to the whole of West Bengal except the area to which the provisions of Calcutta Thika Tenancy Act, 1949 apply but not excepting the area to ‘which such provisions may have ceased or may hereafter cease to apply by virtue of any law for the time being in force.’
3. The provisions of this Act shall have effect notwithstanding anything to the contrary contained in any law for the time being in force or in any rule, order or notification or in any contract, express or implied, and notwithstanding any decision, decree or order of any Court, tribunal or other authority to the contrary.
4. The provisions of this Act shall apply to all suits, appeals and other proceedings (including proceedings in execution), pending at the commencement of this Act, in respect of any area to which the provisions of the Calcutta Thika Tenancy Act, 1949 ceased to apply upon the commencement of the Calcutta Thika Tenancy (Amendment) Ordinance, 1987 and shall also apply to all suits, appeals and other proceedings in execution in respect of any area to which the provisions of that Act may, by virtue of any law for the time being in force, hereafter cease to apply.”
Accordingly, Mr. Mukherjee contended that the provisions of the West Bengal Non-Agricultural Tenancy Act, 1986 should apply to Garden Reach area with retrospective effect, in view of the judgment of the Supreme Court in the case of H. Shiva Rao v. Cecilia Pereira, , wherein the Supreme Court considered the effect of the amendment of this nature, as provided in Section 4 of the said amending Act in a pending matter, the Supreme Court held that in view of the similar provisions to that of sub-section (4) of the said amending Act, the decree was not executable because subsequent to the decree the Act had been made applicable to the area in question when possession was not taken over. In paragraph 5 of the said judgment the Supreme Court observed:
“It has to be borne in mind that Rent Control legislations are beneficial to the tenant and restrictive of the rights of the landlords — these legislations were passed to meet the problem of shortage of accommodation in cities and towns. Whether that is the best way to meet the problem of finding habitats for growing number of people is another issue. Whether or not the problem could not be met by another way is also another question. Courts must find out the literal meaning of the expression in the task of construction. In doing so if the expressions are ambiguous then the construction that fulfils the object of the legislation must provide the key to meaning. Courts must not make a mockery of legislation and should take a constructive approach to fulfil the -purpose and for the purpose, if necessary, iron out the creases.”
At paragraph 7 the Supreme Court observed:–
“Where in a society of acute shortage of accommodation adjustment of rights between the parties is the purpose, we must ask ourselves two questions does the argument of the appellant on the construction of the section further the purpose of the legislation, and secondly, whether the construction canvassed by the appellant does violence to the language or is contrary to the literal meaning. In our opinion the answer to the first question is in the affirmative and to the second in the negative. If so, in our opinion, it must be so read, and the appeal must succeed.”
The Supreme Court ultimately held that an order or decree for eviction of a tenant passed prior to the date when the Rent Act was made applicable to the area in question, action taken against the tenant after the Act was made applicable to the area in question.
13. Mr. Mukherjee contended that in view of the decision of the Supreme court, it must be held that the decree for eviction must conform with the statutory requirements of the provisions of the West Bengal Nony Agricultural Tenancy Act, 1949 and admittedly in this case that was not done so, inasmuch as on the date when the suit was filed, the provisions of the West Bengal Non-Agricultural Tenancy Act were not extended to that area and that Mr. Mukherjee submitted that now at the execution stage the judgment-debtor can take the point that the decree could not be executed inasmuch as the decree was a nullity and in this case reference was made to the decision of the Supreme Court in the case of Smt. Nai Barm v. Lala Ramnarayan, , wherein the suit for eviction was compromised between the landlord and tenant where the tenant agreed to vacate the suit premises. The tenant failed to vacate the suit premises in terms of the compromise decree. The decree was put into execution and at execution stage, the tenant raised an objection that the compromise decree was a nullity. In that connection, the Supreme Court observed that a decree for eviction of a tenant cannot be passed solely on the basis of the compromise between the parties as the Court was to be satisfied whether a statutory ground for eviction which has been pleaded which the tenant had admitted by the compromise and that when a compromise decree is challenged as a nullity in the course of its execution, the executing Court can examine relevant materials to find whether statutory grounds of eviction existed in law. If the pleadings and other materials on the record make out a prima facie case about the existence of statutory grounds for eviction, a compromise decree cannot be held to be invalid and the executing Court will have to give effect to it. On the contrary if it was found that the statutory grounds for eviction do not exist and in that event the said compromise decree was a nullity and not binding upon the parties.
14. Similar view was taken by the Supreme Court in the case of Roshan Lal v. Madan Lal, . Mr. Mukher-jee also relied upon a passage from Craies on Statute Law, Seventh Edition at page 396 where it is observed :–
“If a statute is passed for protecting the public against some evil of abuse, it may be allowed to operate retrospectively although by such operation it will deprive some person or persons of vested right.”
15. It was submitted by Mr. Mukherjee that as the provisions of the West Bengal Non-Agricultural Tenancy Act was extended to Garden Reach, during the pendency of the first appeal. The decree has to be passed strictly in accordance with the provisions of West Bengal Non-Agricultural Tenancy Act and the decree passed in accordance with Mr. Mukherjee submitted that because of the amendment in the Act by the amending Act of 1986 by which the provisions of the West Bengal Non-Agricultural Tenancy Act, 1949 were applicable to the area in question with retrospective effect the case had to be governed by those provisions. Mr. Mukherjee in this connection also referred to the Statements of Objects and Reasons in the West Bengal Non-Agricultural Tenancy Act, 1974 which are as follows:–
“In between September, 1967 and the year 1974, neither the Calcutta Thika Tenancy Act, 1949 or the West Bengal Non-Agricultural Tenancy Act, 1949 was applicable to the area of Garden Reach Municipality, as notified under Section 1 of the Calcutta Suburban Police Act, 1966. As such, these areas came to be governed by the general law, namely, the Transfer of Property Act, 1882. Taking advantage of this-position, the landlords of the area filed eviction suits against the thika tenants and obtained ejectment decrees on the basis of the provisions of the Transfer of Property Act, 1882. The Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 is not also applicable to these areas. It is, therefore, felt necessary that to save the interest of thika tenants, sub-section (2) of section 1 of the West Bengal Non-Agricultural Tenancy Act, 1949 should be amended suitably so that the provisions of the Act may apply retrospectively to the areas of Garden Reach Municipality as noticed under Section 1 of the Calcutta Suburban Police Act, 1966.”
16. Mr. Mukherjee also relied on a passage from the case of East End Dwelling Company Ltd. v. Finsbury Borough Council reported in (1951) 2 All ER 587 at 599 wherein it was observed that “if one is bidden to treat an imaginary state of affairs as real, one must surely, unless prohibited from doing so also imagine as real the consequence and incidents which if the putative state of affairs had in fact existed must inevitably have flowed from or accompanied it one of these in this case is emancipation from 939 level of rents. The statute says that one must imagine a certain state of affairs. It does not say that having done so, one must cause or permit one’s imagination to boggle when it conies to the inevitable corollaries of that state of affairs.”
17. Mr. Mukherjee also relied on a decision of the Supreme Court in the case of National Coal Development Corporation Ltd. v. Monmohan Mathur, wherein the Supreme Court held that “It was within the competence of Parliament to create the fictions it has created in the original Act XX of 1957 (by the amending 51 of 1957) and again by the amending Act XXIII of 1969. Learned Counsel, however, said that we must take a humane view of the position of a person like the respondent who would lose his all by the acquisition and that too through legislation which make the provisions fictional rather than real. As to the first part we can only say that if the law allows it, the Court must award it and as to the second part we say that kind of legislation by making obligatory notifications Fictional does not accord with our sense of propriety but we cannot say anything against it since Parliament undoubtedly possesses the power to make such fictions.”
“When statute enacts that something shall be deemed to have been done which in fact and truth was not done, the Court is entitled and bound to ascertain for what purpose and for what person this statute fiction is to be resorted and full effect must be given to the statutory fiction and it should be carried to its logical conclusion.”
18. Relying on the aforesaid decisions. Mr. Mukherjee contended that the provisions of the West Bengal Non-Agricultural Tenancy Act should be made applicable in this case and that in the instant case by the amending Act 1974, the provision of the West Bengal Non-Agricultural Tenancy Act was extended to the area in question and further such amendment came into force at a point of time when the first appeal was pending before the Lower Appellate Court. Mr. Mukherjee submitted that the Lower Appellate Court was bound to decide the appeal on the basis of the fact that the said Act had come into force into that area and should have considered whether decree of eviction that was passed conforms with this statutory requirement under the West Bengal Non-Agricultural Tenancy Act and further the doubts and disputes as to the applicability of the provisions of the said Act in this particular case have been set at naught by the legislature by the amend ing Act 1986 whereby the provision of the West Bengal Non-Agricultural Tenancy Act, 1949 was extended to that area with retrospective effect and the legislature made it also specifically clear that the provisions of the said Act should apply also to the proceeding pending in execution and that the said Act should apply notwithstanding contained in any decision or decree by any Court.
19. Mr. Mukherjee submitted that from the reasons and objects for which the 1986 amendment Act was made the legislature make it clear that the legislature in order to remove all doubts and disputes in the matter enforced the said Act with retrospective effect, so as to fill up the gaps left by the legislature whereby the Calcutta Thika Tenancy Act, 1949 was withdrawn from that area with retrospective effect. According to Mr. Mukherjee, when the legislative intent is clear and when a statute has been enforced to a particular area with retrospective effect and when the statute made it clear that the cases of eviction which were pending in execution should conform with the requirement of the said statute, in that event, there is no escape from the position that in the instant case if the decree does not conform with the statutory restriction and condition, in that event, the said decree has to be declared as a nullity and consequently, the judgment and decree pass ed on first appeal as well as in second appeal is also null and void. According to Mr. Mukherjee, if adecree was a nullity by this legal fiction in that event, there could not be any valid proceeding for execution of that decree which cannot be recognised under the law. The decree which is a nullity, could not be executed and possession could not be taken on the basis of such a decree which is nullity.
20. Mr. Sudhir Dasgupta, learned Advocate, appearing with Mr. S. P. Roychou-dhury, learned Advocate on behalf of the respondents submitted that, in this particular case, the relationship between the parties as landlord and tenant was terminated at a point of time when the area was governed by the provisions of the Transfer of Property Act. This was because of the fact that the provisions of the Calcutta Thika Tenancy Act was withdrawn with effect from 30th October, 1969. The suit for eviction of the petitioner was filed by the opposite party on 28th July, 1971 by serving a notice to quit whereby the tenancy was terminated and that the trial Court decreed the suit on the basis of law as existing not only on the date of filing of the suit but also on the basis of the law as existing on the date of the passing of the decree on , 10th January, 1974. The West Bengal Non-Agricultural Tenancy Act was amended on 26th March, 1974 whereby the said area which was governed by the provisions of the Transfer of Property Act was brought under ; the purview of the West Bengal Non-Agricultural Tenancy Act, as indicated above and that against the judgment and decree passed by both the courts below the matter came up for consideration in second appeal before this court which was filed on 1st February 1975 and that the judgment and decree passed by the lower courts was affirmed by this Court on the 13th April 1983. Thereafter the matter was pending for execution. When the matter was pending for execution, at that point of time the West Bengal Non-Agricultural Tenancy (Amendment) Act, 1986 came into force on 4th November, 1986 whereby the provision of the said Act was extended to the area in question with retrospective effect and that S.4 of the said Act provides that the provisions of the said amendment Act should also apply to all suits, appeal and other proceedings (including proceedings in execution), pending at the commencement of the said Act.
21. Mr. Dasgupta contended that the decree was passed by the trial Court on the basis of the law as was existing at the relevant time and further submitted that after the new Act comes into operation during the pendency of the suit or the appeal, the new Act was not applicable to the case. This was the view of the Supreme Court in the case of Jai Narain v. Kishan Chand, .
22. The next case that was relied upon this point was the case of Merwanji Nana-bhoy Merchant v. Union of India, . In paragraph 9 of the said judgment it was held by the Supreme Court :–
“It is an admitted fact that prior to the filing of the suit the respondent’s tenancy had been duly terminated by a proper notice to quit — a fact which has been averred in the plaint and not put in issue by the respondents and the plea raised is that the suit property being situate in the Cantonment Area of Kirkee the Bombay Rent Act, 1947 did not apply to the tenancy in question and as such the respondents enjoyed no protection of the said Act. This latter aspect has to be deduced from the legal position obtaining in the matter at the relevant time. It is not disputed before us that the suit properly is situated in the Cantonment Area of Kirkee, Poona. It is also not disputed that the suit properly had been appropriated by the Central Government on lease after issuance of an order daled December 16, 1929 under the Cantonment (House Accommodation) Act, 1923….. On these admitted facts, in our view, the legal posilion clearly emerges that the respondents did not enjoy the protection of Bombay Rent Act, 1947 and the suit would have to be decided withoul reference to the provisions of the said Act. This would be so for two reasons: (i) suit had been filed on September 17, 1962 when the Bombay Rent Act, 1947 had not been extended to Kirkee Cantonment and even after the application of the said Act S. 50 of the Act XLV1 of 1947 the suit” property being appropriated accommodation under Cantonment (House Accommodation) Act, 1924 the tenancy thereof was exempt from the operation of the Bombay Uent Act, 1947.”
In this connection reference was made to the judgment of this Court in the case of Debala Mukherjee v. Sujit alias Surjit Singh, (1977) 81 Cal WN 1007 : (AIR 1978 NOC 41), wherein it was held by S. K. Datta, J. that in the case of a decree or order based on the exposition of law of a binding authority (in the present case, the ruling of the Supreme Court), the position is that such a decree or order was not contrary to law on the day the decree or the order was passed or made. Such a decree or order may on account of the subsequent exposition of law in a different manner by such binding authority, becomes contrary to law and this contains an error on the face of the record. Even so, such a decree or orders reaches finality in the course of the proceedings in so far as the court passing the decree or making the order is concerned and is valid, effective and binding on the parties. As such decree or order attains finality in so far as the court passing or making it is concerned, there will be no scope for its review under Ordcr47 of the Civil Procedure Code by reason of any subsequent exposition of the law in a different manner by the binding authority.
23. Mr. Dasgupta next relied on the decision of the Supreme Court in the case of H. Shiva Rao v. Cecilia Pereira, . Mr. Dasgupta contended that the ralio of that judgment was wholly inapplicable in the facts and circumstances of this case. According to Mr. Dasgupta there is no scope for application of the provisions of the West Bengal Non-Agricultural Tenancy (Amendment) Act, 1986. The facts of the case, are that, inasmuch rightly or wrongly, the tenancy was terminated long back and in this connection, Mr. Dasgupta drew the attention of this Court to the definition of the words ‘non-agricultural tenant’, as defined in S. 2(5) of the West Bengal Non-Agricultural Tenancy Act, ‘non-agricultural tenant’ means a person who holds non-agricultural land . under another person and is, or but for a special contract would be, liable to pay rent to such person for that land but does not include (a person who holds any premises or part of any premises, situated on non-agricultural land and erected or owned by another person, and who is, or but for a special contract would be, liable to pay rent for such premises or such part of the premises to such person).
24. Mr. Dasgupta referred to the definition of the word Tenancy’ under the provisions of the West Bengal Premises Tenancy Act for the purpose of examining the scope and effect of the judgment of the Supreme Court (supra) as well as (supra) as also the judgment (supra). The word ‘tenant’ has been defined in S. 2(h) of the West Bengal Premises Tenancy Act which means:–
“any person by whom or on whose account or behalf, the rent of any premises is, or but for a special contract would be payable and (includes any person continuing in possession after the termination of his tenancy or in the event of such person’s death, such of his heirs as were ordinarily residing with him at the time of his death) but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction.
Relying on this definition, Mr. Dasgupta submitted that there is clear distinction in the definition of ‘tenant’ provided under the West Bengal Premises Tenancy Act and the definition of ‘tenant’ under the West Bengal Non-Agricultural Tenancy Act. In case of tenant governed by the West Bengal Premises Tenancy Act, the tenancy continues by virtue of the definition even after the termination until such time a decree for eviction has been passed. But such an extended definition is not available in case of a tenant governed under the provisions of the West Bengal Non-Agricultural Tenancy Act where the definition did not provide in so many clear words that the tenancy continues even after the termination of the tenancy. Mr. Dasgupta submitted that in this case it is to be decided what is the scope of S. 47 of the Civil Procedure Code, whether within the scope of S. 47, the judgment and decree passed by the trial court affirmed by the lower appellate court and finally affirmed by this court in second appeal, the matter could be re-opened on the basis of the amendment Act which was passed only on 4th November, 1986. Mr. Dasgupta submitted that is not a case where the court has passed a decree without jurisdiction and/or a decree which is a nullity and it is submitted that there is a distinction between the pleas that the decree is contrary to law and a decree which is a nullity. In this connection reference was to the Division Benchjudgment of the Bombay High Court in the case of Rana Harkishandas Lallubhai v. Rana Gulabdas Kalyandas, , wherein it was held (at p. 516 of AIR):–
“in determining the jurisdiction of the executing court to entertain pleas under S. 38 it is always necessary to make a distinction between pleas that tend to show that the decree in question is a nullity and pleas that merely challenges the validity or the propriety of the decree on the ground that it is contrary to the provisions of law. If the plea is that the decree is a nullity and so cannot be executed, it would be open to the executing Court to entertain the plea.
On the other hand, if the plea is that decree is contrary to law in the sense that in passing the said decree certain provisions of the law have been ignored or contravened, that would not necessarily make the decree a nullity and
allegations about the impropriety or the illegality of the decree cannot be entertained in execution proceedings.”
This view of the Division Bench of the Bombay High Court was affirmed by the Full Bench of the Madhya Pradesh High Court in the case of Moolchand v. Maganlal (FB) (Indore Bench), wherein the Full Bench of the Madhya Pradesh High Court too the veiw affirming the view of the Bombay High Court that if a Court passing the decree has the jurisdiction to pass it, then even if the decree is contrary to certain provisions of law, it would not be a nullity and a plea about the illegality of the decree cannot be entertained in execution proceedings.
25. Reference was also made to the decision of the Supreme Court in the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, , wherein the Supreme Court held that when the decree is made by a Court which has no inherent jurisdiction to make it objection as to the validity may be raised in an execution proceeding if the objection appears on the face of the record. But where the objection as to jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the question raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.
26. Mr. Dasgupta also referred to the decision of the Supreme Court in the case of H. Shiva Rao v. Cecilia Pereira, on which reliance was also made by Mr. Mukherjee. This case was referred to by Mr. Dasgupta only for the purpose of showing the ratio of this judgment is not applicable to the facts and circumstances of the case and pointed out that in this particular case the provisions of S. 21(l)”of the Karnataka Rent Control Act, 1961 was the subject matter of consideration by the Supreme Court and in that connection the Supreme Court observed that it is well settled legal principle that Rent Control legislation being beneficial to the tenant have to be given a liberal interpretation.
27. Mr. Dasgupta relied on the said judgment of the Supreme Court and submitted that in the instant case there is no scope for application of the said amendment Act that there was no provision contained in the West Bengal Non-Agricultural Tenancy Act as amended by the Amendment Act of 1986, containing the provisions similar to the provisions of S. 21(1) of the Karnataka Rent Control Act, 1961. In other words, Mr. Dasgupta submitted that even if the Amendment Act is given retrospective effect and, applies to the present case, in that case also there was no impediment placed upon the Court to pass a decree for eviction and/or recovery of possession.
28. Mr. Dasgupta submitted that in the instant case the tenancy was terminated by a notice to quit under the provisions of Transfer of Property Act and the tenancy has been terminated by a notice to quit cannot be deemed to be a tenancy within the definition of the Non-Agricultural Tenancy Act, which has not been extended to cases where a tenant would continue to be a tenant in spite of notice by which the tenancy was terminated and this is not a case where a tenant could be considered to be a tenant unless the decree for eviction has been passed. It is submitted by Mr. Dasgupta that in the, instant case the tenancy was terminated, the decree for eviction was passed which was affirmed by this Court in second appeal and when the matter was pending at the execution stage, at that point of time the West Bengal Non-Agricultural Tenancy (Amendment) Act, 1986 was passed with effect from 4th November, 1986 by which the provisions of the West Bengal Non-Agricultural Tenancy Act were extended to the area in question with retrospective effect and it was provided that the provisions of this Act should apply to suits and proceedings including execution proceedings pending at the commencement of the said Act. Mr. Dasgupta pointed out that under the provisions of the West Bengal Non-Agricultural Tenancy Act there was no provision similar to the provision contained in the West Bengal Premises Tenancy Act, 1956 and/or provisions of S. 21(1) of the Kar-nataka Rent Control Act by which a bar was imposed on the power of the Court to pass a decree and in this connection reference was made to the provisions of S. 20 of the West Bengal Non-Agricultural Tenancy Act which, inter alia, provides for eviction of a tenant by giving six months’ notice and by paying compensation for the loss of the structure before;grant the decree for eviction. Under such circumstances, Mr. Dasgupta submitted that this is not a case where a bar was created on the power to pass a decree unless there exists certain grounds and in the instant case under the provisions of the West Bengal Non-Agricultural Tenancy Act there was no such blanket restriction on the power of the landlord to evict a tenant as is ordinarily provided in other rent restriction laws, particularly, West Bengal Premises Tenancy Act and the provisions of the Karnataka Rent Control Act.
29. Mr. Dasgupta next contended that the provisions of the West Bengal Non-Agricultural Tenancy Act, amended by the Act of 1986, could not be made applicable to the instant case, inasmuch as the tenancy of the tenant was terminated because and as such there was no scope for application of the provisions of the said Act. In this connection reference was made to a Special Bench decision of this Court in the case of Lakshmimoni Das v. State of West Bengal, , in which the Special Bench of this Court had the occasion to go into the vires of S. 19 of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981, wherein it was provided that all suits and proceedings including the case pending for execution shall stand abated on the passing of the said Act. The Special Bench of this Court held that S. 19 of the said Act, in so far it purports to abate the execution proceeding for eviction of a Thika tenant against whom a decree for eviction has been passed before enforcement of the new Act and appeal preferred by a Thika tenant against whom a decree for eviction has been passed, had not abated and S. 19 was declared ultra vires in so far as it purports to abate any pending proceeding. It was further held that even if there may be abatement of the execution proceedings, the relationship of the Thika landlord and the Thika tenant cannot revive on the date of the passing of the Act. The Special Bench also considered the definition of the Thika tenant under S. 3(8) of the said Act which did not include the erstwhile Thika tenant whose appeal or against whom an execution proceeding was pending when the impugned Act came into force. It was held that if an erstwhile Thika tenant would have been made a Thika tenant, within the definition of the Thika Tenant under the impugned Act, then the Thika tenancy in question could vest under S. 5 and abatement of pending proceedings for eviction of such Thika tenants including appeals and consequential execution proceedings would have been abated without any absurd consequences.
30. On the basis of the said judgment it was submitted that if the tenancy under the Transfer of Property Act has ceased to be so in view of the decree of eviction passed by the competent court, in that event it was not open to apply the provisions of the said Act and to make a decree passed by the competent court a nullity, inasmuch as when the decree was passed, it was passed on the basis of the law as was existing at the relevant time, namely, the provisions of the Transfer of Property Act and the decree as passed long time back by the competent court which was affirmed by the High Court in second appeal would be set at naught. Mr. Dasgupta further contended that within the scope of S. 47 of the Code it was not open to the executing court to go into the question of the validity of the decree passed by a competent court and affirmed by the High Court in second appeal, inasmuch as it could not be shown that there was any legal impediment on the part of the court to pass such a decree. The subsequent amendment, even if the same is applied with retrospective effect, did not create any bar on the part of the court to pass a decree. Mr. Dasgupta submits that it was a case of breach of some of the provisions of law. It was not a case where the court remained powerless, as is found in rent restriction laws. In that view of the matter, it was submitted by Mr. Dasgupta that when the tenancy was terminated, decree was passed long time back, at the execution stage the decree could not be ignored and could not be said to be a nullity because of the subsequent application of the Act with retrospective effect, inasmuch as the same did not and could not revive the relationship between the parties as landlord and tenant and further the definition of non-agricultural tenant whose tenancy was terminated. Mr. Dasgupta submitted that if the decree has to be ignored, in that event the tenancy will not only survive after the termination of the tenancy, but also by definition, the tenancy must continue even after the decree for eviction has been passed against such tenant. Accordingly, it was submitted by Mr. Dasgupta that on the strength of the applicability of the said amendment Act, the decree passed in the year 1974 and affirmed by this High Court in second appeal in the year 1983 could not be touched.
31. Admittedly, Garden Reach area was under the purview of the Calcutta Thika Tenancy Act, 1949 till 1969. It may be mentioned that all over West Bengal the tenancies regarding urban land are governed by the provisions of the West Bengal Non-Agricultural Tenancy Act excepting the area which was governed expressly under the provisions of the Calcutta Thika Tenancy Act, 1949. It may be mentioned that (he Calcutta Thika Tenancy Act, 1949 and the West Bengal Non-Agricultural Tenancy Act govern the non-agricultural tenancy, or in other words, it governs the tenancy relating to land on which residential buildings were there or would be there by the Transfer of Property Act by which lease of all kinds in respect of immovable properties are governed. So, the Calcutta Thika Tenancy Act and West Bengal Non-Agricultural Tenancy Act are Acts governing the field which conferred protection to the tenants against eviction and the incidents of tenancies are governed by the special statutes. The purpose of these two special Acts is to protect the non-agricultural tenants and the necessity of such special statute was because of the partition of Bengal and consequential impacts of refugees from the other part of Bengal and consequent upon derth of land for residential accommodation. It is not understood why the pro visions of the Calcutta Thika Tenancy Act, 1949 which was made applicable to Garden Reach area was withdrawn from that area by the legislature with retrospective effect in the year 1969 and as a result thereof, a vacuum was created by the legislature by a legislative fiction in that area and consequently, the vacuum was automatically filled up by the provisions of the Transfer of Property Act. The Calcutta Thika Tenancy Act and the West Bengal Non-Agricultural Tenancy Act afforded special protection to the tenants of such non-agricultural land and that when the legislature withdraw the provision of the Calcutta Thika Tenancy Act, 1949 from that area, as a result thereof, the non-agricultural tenancy in that area were being governed by the provisions of the Transfer of Property Act. At that point of time the suit for eviction of the non-agricultural tenants who were previously protected under the provisions of the Calcutta Thika Tenancy Act, 1949, were left without any special protection and consequently, when a suit was filed, the tenancy was governed under the provisions of the Transfer of Property Act and the Trial Court decreed the suit on 10th January 1971 on the basis that the tenancy was governed by the Transfer of Properly Act Thereafter, the West Bengal Non-Agricultural Tenancy Act was amended on 26th March 1974 whereby the provisions of the West Bengal Non-Agricultural Tenancy Act were extended to that area. The Act was extended on 26th March 1974 in that area during the pendency of the first appeal before the lower Appellate Court and that the lower Appellate Court dismissed the appeal preferred by the tenant/petitioner on 7th October 1974 on the basis that the judgment and decree passed by the Trial Court was held to be valid and proper in accordance with the provisions of the Transfer of Property Act without taking into consideration of the fact whether such a decree could have been passed by the Trial Court on the basis of the’change of law. The question is whether the validity of the judgment and decree passed by the Trial Court on 7th October 1974 is liable to be tested on the basis of the provisions of the West Bengal Non-Agricultural Tenancy Act 1949 because of the extension of the provisions of the Non-Agricultural Tenancy Act in that area during the pendency of the appeal and secondly, in this particular case, the second appeal was dismissed by this Court by the judgment and decree dated 13th April 1983 is invalid on the self same ground for which the judgment of the First Appellate Court was sought to be invalidated by the petitioner and thirdly, after the second appeal was dismissed, the decree has been put into execution and during the pendency of the execution, the retrospective amendment of the Calcutta Thika Tenancy Act made in the year 1986 as aforesaid could apply and by the legal fiction created by Amendment Act with retrospective effect whether the decree passed by the Trial Court should be declared invalid. and consequently, the judgment of the First Appellate Court and the second appeal by this Court is invalid on the ground of retrospective enforcement of the said Act into the said area. Under our Constitution the legislature is competent and authorised to amend the law prospectively and/or retrospectively. There is no doubt that the legislature can amend the law with retrospective effect excepting enforcing a penal provision with retrospective effect as that would offend the provision of Art. 20 of the Constitution. The Supreme Court had the occasion to consider the effect of extension of the West Bengal Premises Tenancy Act 1956 during the pendency of the first appeal filed in connection with an eviction under the said law and the Supreme Court in the case of Laxmi Narayan Guin v. Niranjan Modak held that the change in law during the pendency of an appeal has to be taken into account and will govern the right of the parties. The legislative command can deprive the Courts of its unqualified jurisdiction to make such order or decree. In the instant case, true at a point of time, when the suit was filed and the decree was passed by the Trial Court, there is no restriction on the power of the Court to pass a decree on the basis of cause of action (which) arose under the provisions of the Transfer of Property Act, but when such amendment in law took place during the pendency of the appeal, the question is whether in the instant case, the said change of Jaw should be made applicable. In this case during the pendency of the appeal, the provisions of the West Bengal Premises Tenancy Act was extended to the area which at the time of filing of the suit and decreeing the suit, the tenancy was governed by the provisions of the Transfer of Property Act. The Supreme Court considered the effect of such amendment during the pendency of appeal and the Supreme Court held that such change in law during the pendency of the appeal cannot be ignored and considering the object of such Act which was a beneficial statute passed for the benefit of the tenants, must be given effect to during the pendency of the appeal and the Lower Appellate Court should consider whether the decree of eviction that was passed by the Trial Court could be passed on the basis of the change in law applying the conditions and restrictions that was there under the new law which was brought into force during the pendency of the appeal. In the case before the Supreme Court the law was not extended to Memari in the District Burdwan with retrospective effect but with prospective effect, but still then the Amending Act was held to be applied while disposing of the appeal by the Lower Appellate Court. In the instant case, the legislature while passing the West Bengal Non-Agricultural Amendment Act 1986, took into consideration the difficulties in this matter and the objects and reasons for such amendment with retrospective effect were that –
“In between September 1967 and the year 1974, neither the Calcutta Thika Tenancy Act, 1949 nor the West Bengal Non-Agricultural Tenancy Act, 1949 was applicable to the areas of Garden Reach Municipality, as notified under Section-I of the Calcutta Suburban Police Act, 1966. As such, these areas came to be governed by the general law, namely, the Transfer of Property Act, 1982. Taking advantage of this position, the landlords of the area filed eviction suits against the thika tenants and obtained ejectment decrees on the basis of the provisions of the Transfer of Property Act, 1882. The Calcutta Thika Tenancy (Acquisition and Regulation) Act 1981 is not also applicable to these areas. It is, therefore, felt necessary that, to save the interest of Thika Tenants, sub-section (2) of S.2 of the West Bengal Non-Agricultural Tenancy Act, 1949 should be amended suitably so that the provisions of the Act may apply retrospectively to the areas of Garden Reach Municipality as notified under Section-1 of the Calcutta Suburban Police Act, 1886”.
The object for which 1986 amendment was made with retrospective effect is clear as the legislature thought it fit that the provisions of the West Bengal Non-Agricultural Tenancy Act should be made applicable to Garden Reach Municipal area, so that the interest of the Thika Tenants be protected. The legislature (was) also aware that taking advantage of the withdrawal of the provision of the Calcutta Thika Tenancy Act, the landlord of that area filed eviction of thika tenant and obtained ejectment decree on the basis of the Transfer of Property Act and such retrospective application of the provision of the West Bengal Non-Agricultural Tenancy Act was necessary to save the interest of the Thika Tenants. True, the legislature brought about this unfortunate and uncertain state of affairs but the Court is not to question the legislative wisdom. In the instant case, when the legislature came forward with the amendment in the year 1974 with retrospective effect and further the amendment of law with retrospective effect in the year 1986 to give effect to the amendment made in the year 1974 with retrospective effect and the provision of the 1986 amendment made it clear that because of the legal fiction, the validity of the decree has to be tested on the basis of protection afforded to the tenants under the provision of the West Bengal Non-Agricultural Tenancy Act and that even in execution stage by legal fiction created by the legislature, the validity of the decree should be tested on the basis of the provisions of the West Bengal Non-Agricultural Tenancy Act. When an Act has been extended in that area with retrospective effect and when statute enacts that something should be deemed to have been done which in fact was not done, the Court is entitled and bound to ascertain for what purpose and for whose benefit the statutory fiction is to be resorted and full effect must be given to statutory fiction and it should be carried to its logical conclusion. This view was taken by the Supreme Court in the case of State of Bombay v. Pandurang . In this case, the Supreme Court also referred to and relied upon the case of East and Dwelling Company Ltd. v. Finsbury Borough Council reported in (1951) 2 All ER 587. Supreme Court also took the same view in the case of National Coal Development Corporation Ltd. v. Manmohan Mathur wherein the Supreme Court held that — “It was within the competence of Parliament to create the fictions it has created in the original Act by the Amending Act. Since Parliament possessed the power to make such fictions the courts cannot say anything against such legislation although it may not accord with their sense of propriety. Nor is it open to them to take into consideration humane view of the position of persons affected by such legislation.” If it is in accord with the legislative intention statute affecting appeals can be given retrospective effect so as to be applicable to the appeals pending when the statute was enacted.
32. The above case laid down the proposition that the validity of a judgment should not be determined only by the law in force at the lime when the decree was passed but even by a law which is passed when the appeals are pending. The law is that a judgment is final subject only to the condition that the judgment may be reversed for errors committed by the Trial Court. The judgment really becomes final for all practical purposes after the judgment is affirmed on appeals. The judgment when rendered by the Trial Court, may be found good on the basis of the law prevailing at the time of judgment delivered, but when the legislative intention is clear that the judgment should be delivered and the rights of the parties should be governed by a changed law and when such intention is clear, it is the duty of the Court to give effect to this legislative intent.
33. In the instant case, it was the intention of the legislature that the judgment and decree passed earlier than 1974 should conform the requirements of law on the basis of the changed law and accordingly, 1 am of the view that in the instant case, the validity of the decree has to be tested on the basis of the provisions of the West Bengal Non-Agricultural Tenancy Act. Admittedly, in the inslunt case, the matter was not decided on that footing by the Lower Appellate Court and nor by this Court in second appeal. The question that calls for decision in second appeal in this case was whether the tenancy is to be governed by the provisions of the Transfer of Property Act or the West Bengal Non-Agricultural Tenancy Act 1949: Admittedly, the attention of this Court in second appeal was not drawn to the provisions of the law as amended in the year 1974 by which the provisions of the West Bengal Non-Agricultural Tenancy Act was extended to the area in question and on the basis of the principle laid down by the Supreme Court in the case of Laxmi Narayan Guin, (supra) the said amendment Act should have been made applicable and if it is found that the Court has no jurisdiction to pass the decree on the basis of the changed law, the order and judgment passed in the first appeal and second appeal also fall through.
34. In the case of Laxmi Moni Das v. State of West Bengal , the Special Bench of this Court had the occasion to consider the vires of S. 19 of the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981 wherein it was provided that all suits and proceedings including the cases pending for execution shall stand abated on the passing of the said Act. The Special Bench, of which 1 was a party, held that S. 19 of the said Act in so far it purports to abate executing proceeding for eviction of a thika tenant against whom a decree for eviction was on the face of it illegal and void. The reason for which S. 19 of the said Act was declared ultra vires was that under the said Act, the interest of thika landlord in thika tenancy was to vest to the State and in accordance with the provisions of the said Act, the interest of all thika landlords vested to the State on the date of passing of the said Act and that the thika tenancy was entitled to continue in possession on the same terms and conditions, in other words, the interest of the thika landlord in thika tenancy was abolished on that appointed date and the thika tenant became a direct tenant under the state on that appointed date. But there are Cases where the thika tenancy was terminated and against whom the decree for eviction was passed and that for the purpose of execution in the decree, the execution proceeding was pending. Section 19 of the said Act provided that those execution proceedings should Stand abated on the appointed date but by simply abating the execution proceedings, the decree for eviction does not automatically become inoperative and/or set aside, in other words, the effect of S. 19 was that the decree for eviction remains against the thika tenant but the landlord is prevented from taking possession and as the decree for eviction was interfered with by the legislature and if it is not done so, in that event, the thika tenant against whom the decree for eviction was passed, and if execution proceeding is allowed to be abated, in that event, the tenant will not become a tenant under the landlord nor under the State. The legislature in that case never intended to invalidate the decree for eviction that was passed by taking away the basis of the judgment, but allowed the decree to remain and execution proceeding was directed to stand abated. Simply by abating the execution proceeding, an amomalous and absurd position was brought about and that by simply abating the execution proceeding, the decree does not automatically stand vacated and the tenancy revives. Unless the tenancy revives, the question of vesting of that thika tenancy to the State did not and could not arise at all. Under that circumstance, the Special Bench of this Court in the above case declared S. 19 of the said Act ultra vires. The position in this case is quite different, inasmuch as, originally the tenancy was governed by the provisions of the Calcutta Thika Tenancy Act, 1949 and subsequently, the Calcutta Thika Tenancy Act was withdrawn with retrospective effect and that consequently, the provisions of the West Bengal Non-Agricultural Act was not extended to that area. Under such circumstances, when there is a vacuum, the said vacuum filled up automatically by the provisions of the Transfer Property Act and in the instant case, after the decree was passed but the first appeal was pending, the provisions of the West Bengal Non-Agricultural Tenancy Act was extended to the said area and when it was extended to that area, in view of the decision of the Supreme Court on which the reliance was placed by Mr. Mukherjee to the case of Laxmi Narayan Guin v. Niranjan Modak reported in AIR 1985 SC II) the appeal; should be decided on the footing that the changed law should apply and the validity of the decree should be tested on the basis of changes of law. In view of the ratio of that judgment of the Supreme Court, the provisions of the West Bengal Non-Agricultural Tenancy Act should govern this case. In any event, the subsequent amendment made in the Calcutta Thika Tenancy Act in the year 1986 by which the provisions of the said Act were made applicable to that area with retro-spective effect and as such this case stands on a sound footing than that of the case decided by the Supreme Court in the case referred to. True, that under the West Bengal Premises Tenancy Act, an embargo was there and the Court should not pass any decree for recovery of possession, unless the grounds were fulfilled. But that is not the decisive factor. The factor is whether under the Act as extended the decree would have been passed or not and that in the instant case, the decree for eviction that was passed in the instant case under the provisions of the Transfer of Property Act could not have been passed, satisfying the conditions and restrictions laid down under the provisions of the West Bengal Non-Agricultural Tenancy Act: In my view, the ratio of the judgment of the Supreme Court decided in the case of Merwanji Nanabhoy Merchant v. Union of India, mentioned above is not applicable in the instant case in view of the fact of this case. In the instant case, the provision of the West Bengal Non-Agricultural Tenancy Act 1949 was extended with retrospective effect and if it is given to the retrospective effect, in that event, the decree for eviction on the ground mentioned for eviction could not have been passed.
35. Further the definition of the ‘tenant’ under the West Bengal Premises Tenancy Act provided a broader meaning wherein it was provided that the tenancy continued even after the termination of the tenancy, but did not included person against whom any decree for eviction or order has been made. Such is not the definition of the word ‘tenant’ under the West Bengal Non-Agricultural Tenancy Act. The Supreme Court in the case of Laxmi Narayan Guin v. Niranjan Modak, held that the amendment made during the pendency of the appeal would govern the case and the decree most satisfy the test laid down under the Act as extended during the pendency of the appeal. In the case of the Supreme Court tfie decree for eviction was passed and matter was pending in appeal, but the Supreme Court held that the said Act as extended during the pendency of the appeal should govern the case and on the basis of the said judgment. I am unable to agree with the submission of Mr. Dasgupta that as the definition of the word ‘tenant’ under the West Bengal Premises Tenancy Act is very wide, the ratio of the judgment of the Supreme Court in the case of Laxmi Narayan Guin could not be made applicable in this case. Admittedly, in that case, the decree for eviction was passed. The matter was pending in appeal. In view of the aforesaid judgment of the Supreme Court the position of law is very clear and if the law of this nature is extended during the pendency of the appeal, the Appellate Court hud to decide the appeal on the basis of the law which was made applicable during the pendency of the appeal. After the appeal is disposed of, there is a merger of the Trial Court’s judgment and that for the purpose of challenging the order in that case, the effective order is the appellate order because of the merger. Accordingly,”it cannot be argued that because of the definition of the tenant under the West Bengal Premises Tenancy Act, the appeal is pending. It cannot be said that the decree for eviction has not been passed. The Supreme Court decided that if the matter is pending in appeal the appeal has to be decided on the basis of the change in law. Accordingly, in my view, in the facts and circumstances of the case, the West Bengal Non-Agricultural Tenancy Act shall govern this case.
36. With regard to the submission of Mr. Dasgupta that within the scope of S. 47 of the Code of Civil Procedure it is not open to the executing court to go into the question of the validity of the decree passed by the competent Court, unless it will be shown that there was any legal impediment to pass such a decree. In my view, true under the law, an executing court cannot go behind the decree. But if it could be shown that the decree was a nullity certainly the executing court can go into this question and hold that the decree was a nullity and could not be executed. It is firmly established principle that decree is passed on which the court has no jurisdiction, is a nullity. In the instant case, because of the legal fiction arising out of the extension of the West Bengal Non-Agricultural Tenancy Act 1949 with retrospective effect to the area in question, the decree which was validly passed by the Trial Court has been rendered invalid and inoperative as the Court had no jurisdiction to pass a decree as the ground for decree did not conform with the grounds mentioned in the West Bengal Non-Agricultural Tenancy Act.
37. It is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the slage of execution and even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial or whether it is in respect of the subject matter of the action, strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties. (See Kiran Singh v. Chaman Paswan ).
38. In the instant case, admittedly, the court had no jurisdiction to pass the decree on the basis of the grounds disclosed in the plaint al the time when the decree; was; passed because of the legal fiction of passing an Act with retrospective effect and because of the legal fiction the decree could not be sustained unless it could be shown that it satisfied the test laid down under the new Act. Admittedly, in the instant case, such a decree for eviction could not be passed against the tenant under the provisions of the West Bengal Non-Agricultural Tenancy Act. If the Court hae no jurisdiction to pass a decree because of the retrospective, operation given to an Act, in that event, the said decree could not be sustained. In the instant case, the legisluture wanted to remedy the defect which occurrec because of retrospective withdrawal of the provision of the Calcutta Thika Tenancy Act from the area in question and later on the legislature felt that such a defect had to be remedied and the intention of the legislature is clear from the object of the said amendment Act. In this connection, reference may be made to the Heydon’s case (1584) 3 Co Rep 7a; which was set out and the resolution in Heydon’s case was referred to in Statutory Interpretation by F. Bennion at page 633 para 301, wherein it was observed :–
“In Heydon’s case the Baron of the Exchequer resolved as follows:–
‘That for the sure and true interpretation of all statutes in general (be the penal or beneficial, restrictive of enlarging of the common law), four things are to be discerned and considered:
(i) What was the common law before the making of the Act;
(ii) What was the mischief and defect for which the common law did not provide;
(iii) What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth; and
(iv) The true reason of the remedy.
And then the office of all judges is always to make such construction as shall-
(a) Suppress the mischief and advance the remedy and
(b) Suppress, subtle inventions and evasion for the continuance of the mischief pro pri-vato commodo (for private, benefit) and
(c) add force and life to the cure and remedy according to the true intent of the makers of the Act, pro bono publico (for the public good)”.
39. In the instant case, because of the retrospective withdrawal of the provision of Calcutta Thika Tenancy Act from that area, a large number of tenants were evicted under the provisions of the Transfer of Properly Act because of not extending the provision of the West Bengal Non-Agricultural Tenancy Act and in order to remedy the defect, retrospective amendment was made by which the provisions of the West Bengal Non-Agricultural Act were extended to that area. Accordingly, in my view, the Court will make construction in such a manner so as to allow the benefit of legislation to be enjoyed by the persons concerned to whom it is addressed and for whose benefit the same is passed. “If a statute is passed for the purpose of protecting the public against some evil or abuse, it may be allowed to operate with retrospective effect although by such operation it will deprive some person or persons of a vested right.”
(See Craies on Statute Law 5th Edition page 365).
40. In the instant case, the provision of the said West Bengal Non-Agricultural Tenancy Act 1949 was extended to Garden Reach area for the purpose of protecting the tenants from eviction under the ordinary law namely under the Transfer of Property Act and as such on the basis of the principle laid down by Craise on Statute Law even assuming that the same was not given retrospective effect by legislature in expressed words still then the same should be operated with retrospective effect. Accordingly, I hold that the decree for eviction passed by the Trial Court on 10th January, 1971 holding on the basis that the tenancy was governed by the Transfer of property Act was illegal in view of the extension of the provision of the West Bengal Non-Agricultural Tenancy Act, 1949 in that area firstly, by the amendment Act, 1974 during the pendency of the first appeal and subsequently, by amending the Act in the year 1986 with retrospective effect. The said decree had become inoperative and invalid and as such could not be executed because of the legal fiction created by subsequent legislation in view of the reasoning given by me above. As the basis of the decree had been taken away by legislation by subsequent amendment, the decree was inoperative, consequently the order was passed on first appeal and second appeal also became inoperative and invalid and as such the execution case cannot be continued and the invalid decree cannot be executed. Simply because the judgment of the trial Court has been affirmed by the Division Bench, the defect in the decree which was created by legal fiction by subsequent amending could not be said to have been cured, inasmuch as, on Second appeal the attention of this Court was not drawn to the amendment made in the West Bengal Non-Agricultural Tenancy Act, 1974 by which the provision of the said Act was made applicable to this case and further the amendment Act of 1986 made it abundantly clear that the said Act would apply to Garden Reach Area with retrospective effect and thereby the legislature has taken away the basis of the decree and the decree falls through. The judgment and decree passed on first appeal and second appeal also fall through.
41. In the result, the revision application succeeds and as it hold that the judgment and decree passed by the trial Court on 7-1-71 was void and illegal, consequently, the judgment of the Lower Appellate Court in Title Appeal No. 296 of 1974 is also invalid and inoperative. The judgment and decree passed by A. K. Jana (as his Lordship then was) in the Second.appeal in S-A. No. 194 of 1977 dated 13th April, 1984 is also invalid and inoperative and consequently the petitioner is entitled to relief as prayed for and the order passed by the trial Court dated 21st May, 1986 rejecting the petition filed by the petitioner under S. 47 of the Code of Civil Procedure is also set aside. The judgment and decree passed by the trial Court affirmed by the Lower Appellate Court and this High Court is also set aisde and it is hereby declared illegal and inoperative. There will be no order as to costs.
42. Revision allowed.