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Judgment
This Rule arises out of an application u/s 5(2), Calcutta Thika Tenancy Amendment Ordinance 15 of 1952.
The petitioner was the defendant in a suit for ejectment brought by the opposite parties on the allegation that the petitioner was a trespasser. That suit was decreed by the trial Court and the matter was pending in appeal before the learned Additional District Judge when the application u/s 5(2) of the Ordinance was filed before that Court. It is quite clear that u/s 5(2) referred to above the application contemplated therein has to be filed before "the Court which passed the decree" to quote only the portion relevant for our present purpose. In the present case the decree for ejectment or recovery of possession had been passed by the trial Court and the matter was pending in appeal. But the appellate Court has not even now passed any decree. In these circumstances, in view of the express terms of Section 5(2), quoted above, no application under the said section was entertainable by the appellate Court. On this ground, therefore, the dismissal of the petitioner''s application by the learned Additional District Judge must be upheld and no other question need be considered by us.
In the result, therefore, this Rule fails and it is discharged, but in the circumstances of this case, there will be no order as to costs.
Let the records go down as early as possible.