1974 (5) TMI 115 - SC - Indian Laws

Summary

Issues Involved:
1. Whether the decree of the trial court has merged in the decree of the High Court.
2. Whether the decree for eviction is incapable of execution by reason of Section 17D of the West Bengal Premises Tenancy Act, 1956.

Issue-wise Detailed Analysis:

1. Merger of Decree:
The primary question was whether the decree passed by the trial court on November 24, 1958, had merged into the decree passed by the High Court on January 8, 1969. The principle of merger is based on the concept that there cannot be more than one operative order governing the same subject matter. When an appeal is preferred, the decree of the appellate court supersedes that of the trial court. The Supreme Court reiterated that the decree capable of execution is the decree of the appellate court, not the trial court. In this case, the High Court confirmed the decree of the trial court, and therefore, the decree of the High Court is the operative decree. The court cited several precedents, including *Jowad Hussain vs. Gendan Singh* and *Commissioner of Income-tax Bombay vs. M/s. Amritlal Bhogilal & Co.*, to affirm that the decree of the trial court merges into the decree of the appellate court.

2. Applicability of Section 17D of the West Bengal Premises Tenancy Act, 1956:
Section 17D of the West Bengal Premises Tenancy Act, 1956, provides the power to set aside decrees passed on account of default in the payment of rent. This section was introduced to give relief to defaulting tenants. The court examined whether the decree for possession could be set aside under Section 17D, which applies to decrees passed before the commencement of the West Bengal Premises Tenancy (Amendment) Act, 1968. Since the decree of the High Court was passed on January 8, 1969, after the commencement of the Amendment Act on August 26, 1967, Section 17D could not be invoked. The Supreme Court emphasized that the decree to be set aside must be the one capable of execution, which in this case, is the decree of the High Court.

Conclusion:
The Supreme Court concluded that the decree of the trial court dated November 24, 1958, had merged into the decree of the High Court dated January 8, 1969. Consequently, Section 17D of the West Bengal Premises Tenancy Act, 1956, could not be applied to set aside the High Court's decree. The court allowed the appeal, set aside the judgment of the High Court dated May 31, 1971, and restored the judgment of the Munsif, Second Court, Alipore, dated July 15, 1970. The respondent was ordered to pay the costs of the appeal and the revision before the High Court.