Case Note & Summary
The litigation arose from a suit for eviction filed on 19-05-1953 by the predecessors-in-title of the appellants against the respondent tenant on the ground of non-payment of rent. The trial court, by its decree dated 24-11-1958, held that the respondent was not entitled to protection under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, and passed a decree for possession. The first appellate court confirmed that decree on 12-04-1967. During the pendency of the first appeal, the appellants purchased the plaintiffs' right, title and interest in the suit premises and obtained assignment of the decretal rights. The respondent's second appeal was dismissed by the Calcutta High Court on 08-01-1969, with time granted to vacate till the end of January 1970. Meanwhile, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 was repealed by Section 40 of the West Bengal Premises Tenancy Act, 1956. The 1956 Act was amended retrospectively from 26-08-1967 by the West Bengal Premises Tenancy (Amendment) Act, 1968, and further amended by the West Bengal Premises Tenancy (Second Amendment) Act, 1969, which came into force on 14-11-1969 and introduced Section 17D. Section 17D permitted a tenant to apply within 60 days to set aside a decree for recovery of possession passed before the commencement of the 1968 Amendment Act on the ground of default in payment of rent. On 12-01-1970, the respondent filed an application under Section 17D. The trial court dismissed the application holding that the trial court decree had merged into the High Court decree which was passed after the commencement of the 1968 Amendment Act. The High Court, in revision, allowed the application and directed dismissal of the suit. The appellants appealed to the Supreme Court. The main legal issues were whether the trial court decree merged into the High Court decree and whether Section 17D made the eviction decree incapable of execution. The appellants argued that the doctrine of merger applied because the entire decree was challenged in appeal and the High Court disposed of the appeal on merits. The respondent contended that the trial court decree was passed before the commencement of the 1968 Amendment Act and therefore Section 17D was attracted. The Supreme Court relied on the doctrine of merger, holding that the judgment of an inferior court, when subjected to examination by a superior court, ceases to have existence in the eye of law and is superseded by the superior court's judgment. The Court held that the subject matter of the suit and appeal was identical, the entire trial court decree was taken in appeal, and the High Court dismissed the appeal on merits with a modification regarding time to vacate. Consequently, the trial court decree dated 24-11-1958 merged into the High Court decree dated 08-01-1969. Since the High Court decree was passed after the commencement of the West Bengal Premises Tenancy (Amendment) Act, 1968, Section 17D of the 1956 Act had no application. The appeal was allowed, the High Court's order was set aside, and the eviction decree was restored.
Headnote
A) Civil Procedure - Doctrine of Merger - Where an appellate court disposes of an appeal on merits, the decree of the lower court merges into the appellate decree - Code of Civil Procedure, 1908 (general principle) - The entire trial court decree was challenged in first appeal and second appeal; the High Court dismissed the second appeal on merits after contested hearing, granting time to vacate; Held that the trial court decree dated 24-11-1958 lost its identity and merged into the High Court decree dated 08-01-1969 because there cannot be at one and the same time more than one operative order governing the same subject matter (Paras not mentioned). B) Rent Control - West Bengal Premises Tenancy Act, 1956 - Section 17D - Applicability only where decree for recovery of possession was passed before commencement of West Bengal Premises Tenancy (Amendment) Act, 1968 (26-08-1967) - Since the only executable decree was the High Court decree dated 08-01-1969, passed after the commencement of the Amendment Act, the tenant's application under Section 17D was not maintainable; Held that Section 17D did not apply and the eviction decree could not be set aside (Paras not mentioned).
Issue of Consideration
Whether the decree of the trial court merged in the decree of the High Court; whether by reason of Section 17D of the West Bengal Premises Tenancy Act, 1956, the decree for eviction became incapable of execution.
Final Decision
The appeal was allowed. The High Court's order allowing the Section 17D application was set aside. The eviction decree was restored, and it was held that Section 17D had no application because the trial court decree merged into the High Court decree dated 08-01-1969, which was passed after the commencement of the West Bengal Premises Tenancy (Amendment) Act, 1968.
Law Points
- Doctrine of merger
- appellate decree supersedes inferior court decree
- Section 17D of West Bengal Premises Tenancy Act
- 1956 applies only to decrees passed before commencement of West Bengal Premises Tenancy (Amendment) Act
- 1968
- High Court decree passed after commencement cannot be set aside under Section 17D
- only executable decree is the appellate decree
